Our work injury lawyers have tried many cases to verdict. When the trial is over, we often have an opportunity to interview the jurors who served on the case.
Time and again, jurors are surprised (and often angry) when they learn about things that were going on behind the scenes, but that for whatever reason, they were not allowed to know about before they rendered their verdict.
Here are five facts jurors are often frustrated to learn.
1. There is usually substantial insurance
Who is going to pay the verdict? We are almost always asked this.
The answer is that there is almost always substantial insurance. In most cases, particularly work injury cases, the defendant will have several insurance policies that cover the claims and lawsuits.
Most often, in work injury cases, we see a $1 million basic or “primary” insurance policy, and somewhere between $5 and $50 million in “excess” insurance policies. These policies are covered by companies in faraway places like London, England, which is a worldwide hub for insurance.
Although defendants are not really supposed to do so, in many jury trials, the defense lawyers (typically hired by the insurance company) portray their client as a “little guy.” These insurance lawyers suggest to the jury that a verdict awarding the plaintiff full damages will ruin the “little guy” local company or person who is the defendant.
In fact, there is usually more than enough insurance, and it is being paid from New York or London, or a Fortune 500 insurance company. But the jury does not know this and is misled.
Even worse, the actual “little guy” defendant who has been paying premiums for all this insurance wants to settle the case. These defendants have paid thousands (or more) every year for years to cover a situation just like this, and they expected their insurance company to step up when tragedy occurred. But unfortunately, billion-dollar insurance companies often don’t step up like they are supposed to.
In nearly every case, the insurance company decides to settle or not, not the defendant. There may be a claims adjuster in New York or London deciding whether or not to settle a case in Texas. The adjuster probably has never even met the defendant who has been paying for the insurance. Worse, the claims adjuster may receive a bigger bonus if he or she settles cases on the cheap. The result? Insurance companies are not reasonable and do not settle.
We have met several people who have been shocked and angered when they learn this. Jurors are often unaware of this fact.
2. By the time a case gets to trial, the plaintiffs have usually tried to settle within the insurance several times
In our experience, most times, injured plaintiffs are extremely reasonable in their demands. Injured people usually only have one case their entire lives. If they get nothing, they will lose everything, and they will not be able to support themselves and their loved ones.
Because of this fact, plaintiffs typically want to settle. Nearly all of our clients offer to settle within the defendants’ insurance policies before the trial, even if their case is worth much more.
Insurance companies, on the other hand, are repeat customers. They are in the business of getting sued and fighting lawsuits. They have infinite resources and enough money to “starve” plaintiffs by putting them through years of litigation.
Insurance companies know that if they hold out long enough, they can get most injured people to settle for pennies. They also know injured people cannot afford lawyers, which means the lawyers representing the injured people usually work on a contingency fee. These plaintiffs’ lawyers have often fronted hundreds of thousands in expenses just to get the case to trial.
Insurance companies use these facts as leverage. These insurance companies are often able to persuade injured people to accept much, much less than their claim is worth.
3. An insurance company who does not settle is on the hook for the full amount, so insurance companies almost always appeal the jury’s award
In most states, including Texas, an insurance company that does not accept a reasonable settlement offer “within policy limits” can be on the hook for the full jury award.
Suppose the insurance company has a $1 million policy. The plaintiffs offer to settle for $750,000. The insurance company’s adjuster is trying to get his end-of-year bonus, so he or she turns down the offer. The case goes to trial, and the jury awards $100 million. Because the insurance company turned down an offer within policy limits, the insurance company is on the hook for the full $100 million. The insurance company is on the hook for this amount because the law wants to encourage insurance companies to resolve disputes. In Texas, this is called the Stowers doctrine.
Because of the Stowers doctrine, in nearly every case, the insurance company will appeal any judgment the jury awards.
In fact, following jury verdicts, we are aware of many, many insurance companies (and defendants) who have bragged—to injured people who need the help—about how they can keep the injured people from getting their money by tying the jury’s verdict up on appeal for years.
These insurance companies (and defendants) hope they can successfully persuade the injured people to take less than the jury awarded, because they know the injured people cannot afford to live without the money for years while the case is on appeal.
When jurors find this out, they often wish they had awarded more money. After all, the defendant was not going to pay for years anyway, and awarding more money could help the injured person settle the case for closer to fair value.
4. The plaintiffs don’t take home the entire award
In most personal injury cases, the injured person’s own health or disability insurance companies may have the right to “first money.”
For example, as part of their employment, or paying on their own, an injured person may have insurance to cover disability or healthcare (from a company like Blue Cross-Blue Shield). This is insurance the plaintiff has been paying for, or earned through his or her employment, separate from the insurance the defendant has been paying for.
Even though the injured person has paid for or earned this coverage, the insurance company may still get “first money” from any jury award. These insurance companies get to double dip—collect premiums, and collect from another insurance company that pays the jury award.
The result is that one insurance company pays another insurance company a significant part of the personal injury award.
When juries find out the plaintiffs only get a fraction of their award because insurance companies (and frankly lawyers too) take a big chunk, they wish they had awarded more money.
5. The way the jury answered questions might have limited the plaintiffs’ award
At the end of the trial, most juries are given a “jury charge.” The charge has a set of instructions and questions for the jury to answer.
The jury’s answers to these answers often have unanticipated consequences.
For example, one question may ask the jury to assign “percentages” to various parties.
This may include the plaintiff. In Texas, if the jury assigns more than 50 percent to the plaintiffs, they often recover zero. That’s right, zero.
This means a jury can award $10 million in damages, and assign 49 percent responsibility to the defendant, but if the jury assigned 51 percent to the plaintiffs, the plaintiffs recover zero in most cases.
In a work injury case, the jury may also be asked to assign responsibility to the plaintiff’s employer. Even when the employer is not at fault (or cannot be sued because of specific laws related to employers and insurance), under Texas law, the jury may be entitled to assign a percentage to the employer. Even though the employer may be assigned a percentage, the employer is not part of the case, and typically does not have to pay anything.
In such cases, the insurance defense lawyers will try to persuade the jury to assign a huge percentage of responsibility to the employer. This will reduce how much the plaintiff can recover, and insurance defense lawyers believe it is easier to blame the employer, as opposed to blaming the injured person (although they do that too).
By blaming the injured person’s employer, insurance companies hope the jury will not catch on, or will think the employer must have settled already or will have to pay whatever percentage is assigned. Usually that is not the case—the employer usually has NOT been sued or paid any lawsuit settlement, and by law cannot be ordered to pay their share.
So as an example, if the appropriate damages are $6 million, the insurance lawyers will try to persuade the jury to assign 33 percent to the injured person, 34 percent to the employer, and 33 percent to the defendant.
In this scenario, in most cases, the defendant would only have to pay 1/3 of the award. Further, as discussed above, the insurance company will try to get the injured people to accept a fraction of the $2 million award based on the threat of an appeal. A large part of the remainder will get eaten up by insurance companies, court costs, and the costs of hiring a lawyer to fight the case for years. Even with a $6 million award, the plaintiff may walk away with less than they need to cover lost wages and basic medical care.
Jurors spend a lot of time deliberating over how much money the plaintiffs should get. Juries are usually surprised and unhappy when they learn the plaintiffs actually won’t be getting nearly as much as the jury awarded.