For decades, the American public has been bombarded with messages, the subtext of which is this: “Don’t trust juries!” Whenever I hear such consistent messaging, I always ask myself: “Who benefits from us believing this?” The answer: the insurance industry.
The insurance industry cannot control individual jurors. They can influence elections, fund candidates for the legislature, and buy TV time. But they can’t stop jurors from doing their job. This is why Thomas Jefferson wrote: “I consider trial by jury as the only anchor yet devised by man,by which a government can be held to the principles of its constitution.” Individual Americans doing their duty is the answer to tyranny and is the great equalizer. How else could individuals like you and I stand toe-to-toe with insurance companies whose assets dwarf those of many nations?
Juries consist of ourselves and our neighbors. We know the score. As jurors, we take our work seriously and perform this important work as a public duty. Jurors are paid a mere token amount for their work. The “runaway” juries that everyone talks about are largely a myth. I know this because, aside from the occasional outlier, juries in Washington State are thoughtful and conservative, following the instructions given them by the court. As the story goes, a headline entitled: “Dog Bites Man” is not going to get much ink. A freakish episode in which “Man Bites Dog” will! The rare and outlandish catch our attention: airplane crashes, serial killers, and runaway juries. I have been trying cases for thirty-five years and I have yet to see a jury whose verdict was not supported by the evidence.
When I discuss the common misperception that juries are prone to excess with my students and clients, many start off citing punitive damages. Here’s the truth: Not only does Washington State not have any punitive damages in tort or negligence cases, such punitive damages have been disfavored in Washington since we were a Territory. Moreover, the United States Supreme Court in a series of recent decisions has cut way back on punitive damages, favoring only low single digit multiples of the actual damages. In a recent study, we found that it was insurance defense counsel that was responsible for requesting a jury trial in 90% of medical malpractice cases filed in King County, Washington. If juries were so prone to high verdicts, the insurance companies would not be favoring jury trials over judge trials.
Insurance companies know that juries are conservative and not prone to excess. By raising a great hue and cry about “runaway” juries, they make us doubt ourselves and help to keep juries from ever daring to give generous awards. At the same time as insurance companies were complaining about a “suit happy” society, the federal Bureau of Court Statistics documented a 79% drop in federal court tort trials (from 1985 to 2002). And, here’s a news flash from the non-partisan Bureau of Justice that the insurance companies don’t want you to know: Plaintiffs won more often in tort trials to the bench (judge) (54%) than in tort trials to the jury (46%). Plaintiffs did better before judges than juries!
Jurors are careful to make sure that justice is done. The plaintiffs are forced to seek justice in court because they could not get fair treatment at the hands of the insurance company responsible – often their own insurance company to whom they have paid premiums for years. To file suit is definitely not a decision to be undertaken lightly; suing an insurance company means taking on a sophisticated, professional litigant, who can afford to play the odds. Individuals such as you and I can hardly afford to gamble. This is the only case we have!
As for lawyers, the only lawyers that you are asked to distrust are plaintiffs’ lawyers, those who represent people like yourself, who have been hurt as a result of the fault of another. We are not asked to distrust corporate lawyers, government lawyers, or insurance company lawyers. They collect fees on an hourly basis or are on salary. Plaintiffs’ counsel, by contrast are often paid on a contingent or percentage of the settlement or verdict. Contingent fees mean that the lawyer doesn’t get paid unless you do. They also allow someone who has been injured, can’t work, and who faces huge medical bills, to afford legal representation they would otherwise never be able to afford. So, you tell me, do you think a lawyer wants to take a frivolous case to a jury, knowing he is opposed by the resources of an insurance company and that if he loses, he gets nothing? In my experience, there is no downside to a frivolous defense made by the insurance company. They can delay, deny and defend to the bitter end, all the while collecting interest on money that should go to victims. So, I ask you, who is more likely to put forward a frivolous argument, an insurance company lawyer who gets paid by the hour, win or lose, or a plaintiffs’ lawyer who, if he makes a frivolous argument, is not only going to get nothing from the jury for his time, but faces court costs and possibly fines if the court finds the case to have been frivolous?