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What Juries Don’t Know

Trial by Jury Has Always Been Important in this Country

The American jury system has been under constant attack over the past several years and the attacks have intensified and become more vicious in recent months. It's to the point that many folks, as well as some elected officials, have forgotten how impor­tant our jury system really is. It's well docu­mented that the rights of citizens are being taken away or at least trampled upon. It's always good to reflect on how the right to trial by jury was looked upon by our found­ing fathers. The following statements pretty well sum up their feelings and beliefs about the importance of the right to trial by jury in this country:

The friends and adversaries of the plan of the constitutional convention, if they agree on nothing else, concur at least in the value they set upon trial by jury; the former regard it as a valuable safe guard to liberty; the latter represent it as the palladium of free government. Alexander Hamilton (1788)

I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. Thomas Jefferson (1788)

Trial by jury in civil cases is as essen­tial to secure the liberty of the people as any of the pre-existent rights of nature. James Madison (1789)

Without the trial by jury we have no way to keep us from being ridden like horses, fleeced like sheep, fed like swine and clothed like bounds. John Adams

Those who would destroy our jury system and take away the right to trial by jury are undermining the one that has consistently protected the American people and preserved their rights and freedoms over the years. Unfortunately many, includ­ing even some judges, have forgotten that the right to trial by jury is guaranteed by the U.S. Constitution in both criminal and civil disputes. It's rather interesting, and also quite telling, that the attacks on and jurors have been made just on the civil jury side and on the folks serving just on the civil juries.

Jury Duty: The Responsibility of Every Citizen

Tragically, too many Americans have a negative view of serving on a jury: long trials, being cooped up in a small room while an expert drones on about complex topics, invasion of privacy and public ridicule.

It seems appropriate to offer a refresher course on the history and the importance of the American jury system.

There are three basic ways American citizens can demonstrate their patriotism: military service, such as that being offered by our men and women in Iraq; voting, and every person 18 years of age and older should exercise that privilege; and serving on a citizen jury to help dispense justice.

The Seventh Amendment guarantees the right to trial by jury in civil cases. In fact, the first generation of Americans believed this right was so important that they threatened to reject the entire Constitution if such a right were not included.

In the years leading up to the American Revolution, with an increasing number of abuses by British administrators, the Americans would have loved to have had the chance to do what John Wilkes did. When agents of the Crown in London seized his opposition newsletter under an illegal warrant, Wilkes sued and won a large punitive damages verdict. The jurors for that case were cheered on both sides of the Atlantic.

The colonists had no such opportunity. When the English governors tried to enforce the Stamp Act tax and other hated acts of Parliament in criminal and civil actions, the colonists appealed to local juries for relief. But the Crown said these cases would be tried by judges alone.

Loss of the right to a jury was closely associated with taxation without representation. When the Americans published their Declaration of Independence, they made a list of “repeated injuries and usurpations” committed on the part of King George, including, “…depriving us in many cases, of the benefits of Trial by Jury.”

On a September day in 1787 in Philadelphia, as the delegates were about to go home after months of wrangling over a plan for the new government, one representative pointed out that no provision had been included for the right to a jury in civil cases. The exhausted delegates voted not to open up debate over a bill of rights.

The proposed Constitution met with heavy criticism. Many Americans were particularly incensed at the absence of the jury right. Patrick Henry in Virginia railed against the lack of a civil jury provision.

Americans finally ratified the Constitution only after the Federalists committed to adding a Bill of Rights including the right to trial by jury.

These days, there are some people and lobby groups who choose to ridicule American juries and even seek to diminish their authority. The media circulates stories of “crazy” verdicts – though the stories almost always turn out to be gross distortions or even fabrications. The perpetrators of jury-bashing are frequently the same sort of wealthy and powerful special interests that our Founders warned about.

The jury is the bedrock of our democracy. Those who seek to undermine this essential institution fundamentally distrust the American people – you, your family, your neighbors, your friends, your co-workers – who do their patriotic duty by serving on juries.

The rule of law in America helps ensure freedom of expression, the sanctity of contracts, the rights of workers, the safety of products and services, the preservation of the environment, and all the underpinnings of civil society. It is worth considering that those who fashioned the nation’s fundamental law – the Constitution – insisted that the civil jury “shall be preserved.” Source: TTLA

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Misconceptions About Our Judicial System

In my years as a trial lawyer, I've learned that there are many misconceptions about our judicial system.  For instance, many people incorrectly believe they can file a lawsuit directly against the insurance company of the person who injured them when they are unable to agree on a fair settlement of their claim.  Ohio law requires that the at-fault party, NOT his or her insurance company, be named in any lawsuit. There is no exception:  even if the policy holder is a relative or close family friend he or she must be named in the lawsuit to force their insurance company to pay the claim. The insurance company defends the case and pays any verdict which is within the policy limits.  The Rules of Evidence do not allow an attorney to tell the jury about insurance coverage.  For this reason, you won’t hear any mention of insurance in most trials.

America’s system of justice exists to protect the rights of every citizen, including the right to recover losses from injuries caused by someone else’s carelessness. The system works best when all of the people involved take it seriously. Plaintiffs, defendants, attorneys, judges and juries. The vast majority of injury cases are settled out of court and most people who come to court do so as a last resort. They’ve waited years to get there and may have spent thousands of dollars on medical bills and living expenses; often too injured to work. If you are selected as a juror in a civil case, take it seriously. The decisions you make in court will affect people’s lives for years to come.

The Role of the Jury

Jury's are "fixers and balancers." Their job is to fix; to help; to make up for; and to figure out how much it will take to make up for the harms and losses caused by the carelessness of another. 

Three goals:

1. To fix what can be fixed—such as by repaying lost income and medical bills

2. To help with can be helped—such as paying for therapy that will help but not cure

3. To make up for (balance) but cannot be fixed or helped—such as past pain, or injuries that cannot be treated in future. Source: David Ball

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What Jurors Don't Know

Most people assume that juries that participate in personal injury and wrongful death cases have access to all information that is relevant to deciding the case. That is absolutely not true. In fact, some of the information that most people would consider essential to deciding  a case is deliberately kept away from juries by the Courts—not the lawyers. For example, juries routinely want to know if the at-fault party in a lawsuit has liability insurance, and if so, how much. But juries are not permitted to have this information. This is because the Courts have created Rules of Evidence which for many decades have held that evidence of liability insurance, though relevant, is highly prejudicial to at-fault parties. The reasoning is that juries will adjust the amount of their compensation based on the amount of available insurance. In reality, that may be true. That is why juries routinely request access to the information. But judges will not give them the information.

But the real question is how are at-fault parties harmed by juries getting this information? If juries know how much insurance a party has, does that necessarily mean that they will award more than the appropriate amount for the case? Juries are given explicit instructions regarding the types of compensation that they are permitted to award by the Judges. Juries have a legal duty to follow those instructions or the decision can be overturned by the trial judge or it can be appealed.

In the real world of jury trials, if jurors are uncertain whether the responsible party has insurance or how much insurance they may have, the jurors become reluctant to award the higher amounts being discussed by the jurors out of concern that the responsible party may be bankrupted by the award. Even if jurors assume that the responsible party has sufficient insurance coverage, many jurors will not award the higher amount under consideration out of concern that it will impact everyone’s insurance rates. Thus, it is the injured party that is harmed by not providing jurors with liability insurance information.

Insurance companies continue to vigorously oppose any attempt to allow juries information about the responsible party’s insurance coverage. They do this by arguing that jurors will go overboard with their awards if they think that the responsible party has a blank check to work with, i.e., the insurance company. But there is absolutely no evidence to support the claim that jurors would, on average,award more than is appropriate for each individual case. In fact, in cases directly against insurance companies, such as uninsured motorist claims, it is clear that jury verdicts are entirely appropriate to the damages in each case, on average. The real reason insurance companies want to keep insurance information from juries is that they know, on average, that juries award below the appropriate amount for each case for the reasons discussed above, which enhances their profits.

Insurance companies have convinced everyone that insurance premiums for physicians and auto drivers have risen because of injury claims. However, the insurance companies NEVER tell anyone what they do with the billions of dollars of insurance premiums that do not get paid out to injured victims. The statistics regarding how many people never file a claim and continue to pay premiums that end up on the profit side of the statement are a well kept secret. If insurance companies are running at a deficit, how do they have the funds to support political candidates and lobbying efforts?The purpose of paying premiums to insurance carriers is to pay out claims to those legally eligible. The idea was never for insurance companies to collect premiums and simply keep them, was it? What a great legal scam – create a law that an individual must have auto insurance so they have to pay premiums. Then, create laws through lobbying that prevent innocent victims from collecting on their claims. This way, you can simply keep all the money!

On the flip side, there is a similar rule of evidence that for many decades the Courts have enforced for the benefit injured parties. This rule, called “the collateral source rule,” prohibits juries from knowing about any insurance that the injured party has to assist them or compensate them for the injuries caused by the responsible party, such as medical, accident, disability, or sickness insurance.

By the way, there are many other things that jurors do not know: [1] how much are the injured party’s attorney fees and how are they being paid? (it comes out of the judgment; usually 1/3); [2] how much are the injured party’s expenses and how are they being paid? (it comes out of the judgment; amount varies greatly, but if experts are involved, it will be close to $100,000 that the plaintiff’s lawyer advanced on behalf of the claimant); [3] who is the attorney representing the defendant? (an attorney provided and paid for by his insurance company and who works almost if not entirely for the insurance company). The list goes on.

Practically speaking, if a case is filed in court, or if a trial does occur, the defendant will always have INSURANCE (unless the defendant is so wealthy to be self-insured). A plaintiff's lawyer will not devote thousands and thousands of hours and hundreds of thousands of dollars to pursue a claim unless there is a guaranteed source of recovery (i.e., an insurance policy to pay a verdict). Malpractice claims are unusually difficult to pursue, both procedurally and substantively.  As a matter of procedure, you can't simply sue the doctor or hospital and take the case to trial. 

The defendant's insurance company hires the lawyer, decides when to settle, and pretty much makes all of the decisions when a case is in litigation. Most of the time a defendant has little, if any, say about how the case is defended or if a settlement should occur. Decisions about whether to settle, if by how much, are always made by the INSURANCE CARRIER.

Every once in a while, I am reminded of why I am so passionate about the work that I do on behalf of people who have been injured by the careless – indeed, reckless – decisions and activities of others. I do think that most Americans are coming to understand that at almost every turn they are being lied to by the major insurance companies who cry out for “tort reform.” “We need relief from frivolous lawsuits!” they scream.  The reality, however, is that 99% of the people who call our office were injured while going about their daily routines. Most have NEVER been involved in a lawsuit or claim before. Many express “embarrassment” about having to even consult with (of all things!) a personal injury attorney. Most are hardworking, usually with both spouses working to make ends meet. What you never see or hear about are the 100% frivolous, mocking defenses that insurance companies assert to delay, frustrate and embarrass people into taking lower settlements.

How Do Medical Malpractice Claims Help Each of Us?

The Institute of Medicine found that 98,000 people die every year from preventable medical errors, at a cost of nearly $300 billion over 10 years.

This amount doesn't even include the costs associated with people who are injured but survive the event.

Decreasing the number of patients killed by medical errors would have potential savings six times greater than tort law changes.

Preventable medical errors are the sixth leading cause of death in the United States and cost our country $29 billion a year.  While medical malpractice lawsuits are a symptom of the problem, the root of the problem is medical malpractice itself.

The civil justice system gives families of patients who have died or have been injured by medical negligence an avenue to seek accountability.

Proposals for medical malpractice reform are misguided because they only strip away patients' rights and remove accountability. The most effective way to address the medical malpractice crisis is to focus on patient safety efforts.

Hospital Errors Said to Be Ten Times Higher than Thought

One in three people in the United States will encounter some kind of mistake during a hospital stay. The finding by U.S. researchers, which is based on a new tool for measuring hospital errors, is about ten times higher than estimates using older methods. These findings are shocking. The findings suggest that many errors that go undetected. The annual cost of medical errors that harm patients is estimated to be $17.1 billion in 2008 dollars. Source: MSNBC

600 people die each day of medical negligence and American hospitals. Juries don't know this. Nor do they know the resulting public disability and care costs, lost income, or lost household production values. That is estimated as high as $29 billion dollars annually. Yet few cases get an attorney because of the expenses of medical malpractice litigation.

"If a 747 jet liner crashed every day, killing all 500 people aboard, there would be a national uproar over a decent safety and an all-out mobilization to fix the problem." However, "in the nation's hospitals… about the same number of people die on average every day from medical 'adverse events,' many of them preventable errors, such as infections or incorrect medications. Where's the outrage?" Source: USA Today

When there is a plane crash in the U.S., even a minor one, it makes headlines. There is a thorough federal investigation, and the tragedy often yields important lessons for the aviation industry. Pilots and airlines thus learn how to do their jobs more safely.

The world of American medicine is far deadlier: Medical mistakes kill enough people each week to fill four jumbo jets. But these mistakes go largely unnoticed by the world at large, and the medical community rarely learns from them. The same preventable mistakes are made over and over again, and patients are left in the dark about which hospitals have significantly better (or worse) safety records than their peers.

Doctors swear to do no harm. But on the job they soon absorb another unspoken rule: to overlook the mistakes of our colleagues. The problem is vast. U.S. surgeons operate on the wrong body part as often as 40 times a week. Roughly a quarter of all hospitalized patients will be harmed by a medical error of some kind. If medical errors were a disease, they would be the sixth leading cause of death in America—just behind accidents and ahead of Alzheimer's. The human toll aside, medical errors cost the U.S. health-care system tens of billions a year. Some 20% to 30% of all medications, tests and procedures are unnecessary, according to research done by medical specialists, surveying their own fields. What other industry misses the mark this often? Source: Wall Street Journal

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Hospital Employees Refuse to Report Mistakes

Hospital employees recognize and report only one out of seven errors, accidents and other events that harm patients while they are hospitalized, federal investigators say in a new report.

Yet even after hospitals investigate preventable injuries and infections that have been reported, they rarely change their practices to prevent repetition of the “adverse events,” according to the study, from Daniel R. Levinson, inspector general of the Department of Health and Human Services.

In the report, Mr. Levinson notes that as a condition of being paid under Medicare, hospitals are to “track medical errors and adverse patient events, analyze their causes” and improve care.

Nearly all hospitals have some type of system for employees to inform hospital managers of adverse events, defined as significant harm experienced by patients as a result of medical care.

“Despite the existence of incident reporting systems,” Mr. Levinson said, “hospital staff did not report most events that harmed Medicaire patients.” Infact, some of the most serious problems, including some that caused patients to die, were not reported.

Adverse events include medication errors, severe bedsores, infections that patients acquire in hospitals, delirium resulting from overuse of painkillers and excessive bleeding linked to improper use of blood thinners.

The inspector general estimated that more than 130,000 Medicare patients beneficiaries experienced one or more adverse events in hospitals in a single month.

Many hospital administrators acknowledged that their employees were underreporting injuries and infections that occurred in the hospital, he said.

The inspector general found that “hospitals made few changes to policies or practices” after employees reported harm to patients. New York Times

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Medical Malpractice lawsuits

Trial lawyers have a particular aversion to taking cases involving medical malpractice. Of the 10 or so cases we are asked to handle weekly, we only take on a very few each year. We recognize that doctors are not insurers or guarantors of good results. Patients die on the operating table or respond adversely to therapy. You can't fault the doctor for a bad result, per se. Even lawyers lose cases. In fact there are no ties in a lawsuit — only a winner and a loser. Viewing a case from a safe vantage point of hindsight, we try to appreciate what confronted the doctor and his patient at the moment of treatment. What methods did he employ? What emergency was faced with? Only if we truly believe the patient's treatment involved a diligent of duty on the part of the physician will we entertain taking on the case. The case must have merit. And, the doctor must have insurance. Lawyers never take a case unless there are insurance proceeds to pay settlement or judgment! The money never comes from the doctors' own pocket.

People who file lawsuits against doctors accusing them of medical mistakes rarely do so frivolously, and those who file trivial claims generally receive no pay out. "The portrait of a malpractice system that is stricken with frivolous litigation are overblown," according to David Studdart who led a team of researchers at the Harvard School of Public Health. And, the great majority of people injured by medical negligence never sue.

Believe it or not, reputable trial lawyers who specialize in litigating medical malpractice cases do not relish taking every case to court. Why? Because we're likely lose. More than 80% of medical malpractice cases that go to trial rule for the defendant — much worse odds than most other personal injury cases. Medical malpractice is the toughest type of case for plaintiffs to win at trial.

Few cases get an attorney because of the expenses of medical malpractice litigation. It takes a sizablechunk of change for lawyers to prepare such cases — $50,000 would be a "normal" outlay. Meanwhile with Ohio's passage of laws capping damages the amount of any judgment that plaintiffs can take home is nowhere near what the public thinks. There's no huge payout for attorneys.

Medical professionals find lessons in medical malpractice cases. By analyzing the care that led to missed, delayed or incorrect diagnosis, insurers and health-care providers are constantly developing programs to avoid mistakes.

Doctors do not lose their license, position, status, money or their job when they are found to be careless by a jury. The insurance pays! Not the doctor.

Diagnostic Errors are Leading Cause of Malpractice Lawsuits

Diagnostic errors i.e. misreading a CAT scan or x-ray are the leading cause of malpractice lawsuits, account for as many as 40% of cases! Peter Pronovost, a patient-safety researcher at Johns Hopkins University, estimates that diagnostic errors kill 40,000 to 80,000 patients annually, based on autopsy studies over the past four decades.

While malpractice claims represent only a fraction of all medical cases, "they are reflective of deeply rooted problems that are much more widespread in healthcare," according to Robert Hanscom, vice president of loss prevention and patient safety for a malpractice insurer that covers Harvard University affiliated hospitals and doctors. Mr. Hanscom says cases linked to diagnostic here is appear to be on the rise as primary care doctors, struggling with heavy caseloads, take shortcuts for don't act on their patients symptoms.

Simply put, "a delay in diagnosis can adversely affect a patient's long-term outcome," says Gordon Schiff, associate director of patient-safety research at Brigham and Women's. Malpractice cases "let us and learn deeper lessons, like what could've been done differently," Dr. Schiff says. Source: Wall Street Journal

Lawyer Advertising

Our population has increased to the point that even doctors and hospitals advertise! Advertising is a way of life in our country. Lawyers work hard to represent their clients should let the public know that their services are available. But most lawyers don't condone sleazy advertising. Competent attorneys have an ethical obligation to let the public know their services are available.

The McDonald's Coffee Case

Even though the McDonald's coffee case occurred nearly 2 decades ago, people still use the jury's verdict in that case as an example of greedy plaintiffs, greedy lawyers, and runaway juries. However, anyone who knows what actually happened in that case would not find any fault with the result. Here are the true facts:

Plaintiff was a passenger of her grandsons car when she ordered coffee at a drive-through window of McDonald's. Coffee came in the usual Styrofoam cup, and while the car was stopped, she remove the lid so she could add cream and sugar. It was at this point that the entire cup of coffee spilled into her lap. The coffee was absorbed by her sweatpants which held the coffee against her skin. She received third degree burns to her inner thighs, buttocks and groin area, and she needed painful debridement treatments.

Plaintiff asked for $20,000 to settle her case but McDonald's refused to settle. After her lawyer filed suit, it was discovered that in the previous 10 years, more than 700 customers had been burned by McDonald's coffee. This, of course, showed that McDonald's was aware of the problem. It was also discovered that most other places sold their coffee at much lower temperatures. McDonald's own quality assurance manager testified that at the temperature it was poured to the cups, McDonald's coffee was not fit for consumption as it would burn the mouth and throat. At the same time, he also testified that McDonald's had no intention of reducing the temperature.

The jury awarded plaintiff $200,000 to compensate her for her injuries, but because she was found to be 20% at fault, that amount was reduced to $160,000. The jury also decided to send a message to McDonald's whose conduct was found to be reckless, callous and willful, and so it awarded $2.7 million in punitive damages, which equaled McDonald's coffee sales in two days.

Two more points: the judge reduced the punitive damages award to $480,000 and McDonald's reduce the temperature of its coffee.

For all the demonizing of trial lawyers, the reality is that we keep consumers safe. Litigation has not only advanced public safety, but has encouraged improvement in medicine and in products too numerous to mention.

Trial lawyers have a rough draw. Long work hours, on certain paychecks, and social stigma stemming from negative smear campaigns by insurance companies.

I am dedicated to the safety and well-being of society.

Jurors don't know about the enormous investment of time and money invested by trial lawyers and that if we lose, the trial lawyer will probably have to pay the costs ourselves because the client would never be in a position to pay us back.

No other profession exists where the professional works for free and leaves the ultimate decision to pay him/her, to a group of people strangers who know nothing about law or medicine. Can you imagine a professional athlete not getting paid for all his/her efforts unless and until he/she wins a trophy or a grand event like the Super Bowl? Only civil trial lawyers work for free until a jury determines whether they have earned their money by proving their case. On the flipside of the coin, the defense lawyers, hired by insurance companies, get paid by the insurance company, regardless of whether or not they win or lose, regardless of their performance.

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