WHAT PLAINTIFF ATTORNEYS CANNOT DISCUSS AT TRIAL
This is the first part of a three part series concerning elements of personal injury cases that are not admissible at trial. The purpose of this blog is to educate readers on the reasoning behind judicial rules barring exclusion of specific facts and issues, as well as remind potential jurors and plaintiffs to remember the reason that you won’t hear these facts in trial. This is important, because as a potential plaintiff or jury-member you must not mistake the failure to mention these facts during the trial as proof of their non-existence. Try to remember these rules and how they apply to the facts of the case that you are involved in so that you understand why a fact or argument that you find important or persuasive wasn’t used or uncovered during the trial. If ever asked to sit as a juror on a personal injury case, you will now understand not only the issues being discussed but what is not being addressed at trial and the reasons for which.
Personal injury litigation is a winding road. The process that occurs from accident scene to courtroom is long and complicated. There are a variety of stages leading up to a jury trial; medical treatment, pre-litigation demands, filing of pleadings, discovery, settlement negotiations and mediation are all necessary parts of a personal injury case. As a plaintiff you may have personal knowledge and limited experience with most, if not all of the phases of a litigation case. But to jurors, certain aspects of the buildup to a trial will never be mentioned.
Florida has determined that specific issues should be shielded from jurors in order to protect from misuse. Settlement offers and all statements made during negotiations for settlement are protected from use during trial by the Florida Evidence Code section 90.408. The purpose of this rule is to encourage parties to attempt to resolve disputes prior to trial; the mindset being, “if a party is afraid that (1) statements made in negotiating a settlement or (2) admissions to certain fault or damages will be used against them, that party is unlikely to attempt to resolve the dispute." Please not there are first party cases (when you sue your own insurance carrier) and third party cases (when you go after the at-fault party). In regards to a third party case, plaintiff attorneys’ are barred from discussing insurance or lack thereof. Further, a plaintiff attorney cannot discuss all of the attempts that were made to resolve the claim and the insurance carriers’ failure to resolve the claim, which resulted in the case proceeding to trial.
The basis for this rule seems reasonable and logical. However, the effect of the rule is inequitably apportioned to the plaintiff. In Florida, plaintiffs have an uphill battle from the outset; plaintiffs carry the burden of proof, plaintiffs have often have to convince jurors that they have no other option but to try a case in court, and plaintiffs have to fight the unfair prejudicial fall-out from corporate tort reform propaganda. This relatively new corporate movement has rendered jurors in certain areas to scrutinize the agenda of plaintiffs more veraciously, and may at times lead jurors to believe that the plaintiff in the case at hand has failed to reasonably attempt to settle out of court.
The obvious answer to relieving these new pressures on plaintiffs would be to allow jurors to hear about the extensive negotiations between plaintiffs, defendants, and their counsels go through before trial. But the reasoning behind disallowing evidence of those discussions still holds firm. So the answer left is informing the public and in turn future jurors.
Here are the facts:
1) Every case performed by a competent attorney that goes to trial will have gone through at least three major periods of intense negotiations between the parties. And that’s the minimum. A pre-filing demand for payment should be filed by any plaintiff hoping to get fair treatment by the courts. After filing a lawsuit, a plaintiff will then have to file an official proposal for settlement to protect their interests in case of trial. And after the case has gone through most of the discovery process, the parties will take part in formal mediation as an attempt to resolve the issue without incurring the expenses of trial.
2) Plaintiffs and defendants both have an interest in resolving the dispute before trial. An injured person has the right to be compensated for their losses by the person or entity that caused the harm. In the case of an auto accident, the at-fault party is legally responsible for the injuries that the accident caused to others. So when a person is negligent, the right thing to do is pay the appropriate expenses of the person that the negligence harms. But the insurance company of the at fault party has an interest in keeping the settlement as low as possible; which means that sometimes a plaintiff is left with no option but to file a lawsuit and undergo the expense of trial.
It’s important to remember these facts when you serve on a jury. The person who brought that lawsuit usually does not want to be in court any more than the jurors do; and the reason that person is there is simply to recover for the injuries that he or she has suffered by the defendant’s acts. Don’t forget that the plaintiff, and their attorney have almost surely been trying to settle the claim for months, sometimes years before the case ever gets into court. Remember that what you don’t see in court, doesn’t bar your common sense. The insurance carriers would have you believe that a majority of plaintiffs are greedy and looking for a payday. However, we are barred from discussing at trial just how unreasonable the insurance carriers are in evaluating and subsequently defending injury claims. Thus, if you are ever asked to serve on a jury in an injury case; keep in mind that the plaintiff attorney likely made multiple efforts to resolve the case in an amicable manner.