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An Apology to Jurors

1. I promise not to insult your intelligence; and

2. I promise I will try not to bore you.

The second promise is the easier to explain. I respect that jurors take time out of their lives to fulfill their civic duty, and I'm not going to present cumulative testimony or ask that they read volumes of medical records. I typically retain experts who educate and entertain, and together we try to prove our client's case in the minimum time necessary.

The first promise stems from the constant, annoying word we hear over and over during trial, "Objection!" Why? What are you trying to hide? There's a jury instruction, part of the statement of the law that judges read to jurors, that condones such statements and entreats jurors from considering any objection stated by either of the attorneys, and that makes it even more troubling.

The problem is there are a number of matters that jurors cannot be told. In my most recent trial, these included the following:

1. The defendant driver received a citation for following too closely;

2. The defendant driver maintains third party liability insurance that pays for his defense, pays for his entire claim and directs the conduct of any investigation;

3. Even though public or private insurers may pay all or a portion of the Plaintiff's medical expenses, these amounts must be reimbursed, in whole or in part, to those insurers.

Again, the existence of insurance is not to be stated in open court, and there's a jury instruction that addresses it in case it does:

You must not discuss or speculate about whether any party has insurance or other coverage available. Whether a party does or does not have insurance has no bearing on any issue that you must decide. You are not to make, decline to make, increase, or decrease any award because you believe that a party does or does not have medical insurance, workers' compensation, liability insurance, or some other form of coverage.

One of the issues that arose in our case was the emotional distress caused by the defendant driver's insurance company's conduct in directing a private investigator to conduct surveillance of the Plaintiff. The private eye didn't discover that the Plaintiff was faking or exaggerating her injury; in fact, the hours of video corroborated the Plaintiff's pain. However, the video showed our client attending her son's lacrosse game, following our client surreptitiously as she shopped, and driving slowly by her home when her husband was out of town. She was terrified, became paranoid and eventually bought a handgun to defend herself.

I asked the defendant driver on the witness stand about the decision to hire these investigators, and I thought it was very fortunate that he confirmed that his insurance company directed that to happen. However, upon interviewing jurors after the verdict, they explained that, while they were outraged by this conduct, they were concerned that the insurance instruction told them not to consider such issues, and they didn't want to punish the defendant driver himself.

In trial, I was unable to explain to them that, even though the driver is named as the defendant, the claim is being made against the insurance company. The insurance company directs the conduct of the defense attorneys, hires the investigators that invaded my client's privacy and will pay the judgment to the extent of the driver's coverage, which in this case amounted to $5 million.

So, to the 13 men and women who took time out of their lives to consider this recent case, and to every juror I've had the pleasure to address over the years, I'm sorry that I cannot be entirely candid or truthful. The law prevents me from telling you everything, and frankly, that concerns me, as I don't want to insult your intelligence.

I think it's high time we rethink the insurance instruction. Jurors can reach the right decision when presented all of the facts.

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