Written by attorney Jonathan Craig Reed

Jury Trial or Judge Trial in a Las Vegas Personal Injury Case?

As a Plaintiff's attorney I almost never have to ask myself whether I want a jury or a judge trial. I can lay 1000 to 1 odds in most cases that the defense (in a personal injury case defended by an insurance company or a big corporate defendant) will demand a jury trial so I let them pay the fee to demand the jury trial. (If either side wants a jury trial in most cases they can have it as a matter of constitutional right.) Over the years I have asked various defense counsel why they demanded a jury trial.

Four answers stick out. Here they are:

1) From an associate at an insurance defense firm: "I never really thought about it. I guess it is so we can bill the client a quarter hour for the jury trial demand." Incidentally, a jury trial is more time consuming than a judge trial so the extra billing will really take off for defense counsel if the case goes to jury trial.

2) From in house counsel at a Las Vegas casino: "Collectively the Plaintiffs' bar (lawyers) contributes a lot more money to judicial campaigns than insurance companies or local corporations so as a defense attorney I worry about getting a fair shake from an elected state judge."

3) From a seasoned insurance defense attorney: "As a defense attorney I may think the Plaintiff's case is worth nothing or very little. Some judges like to have settlement conferences. If the judge recommends settlement for $100,000 and the case is going to be tried to the judge my client has to pay the $100,000 at that point. But if the case is going to a jury, I can say, "I'm sorry, Your Honor, but my client would like to take its chances with a jury."

4) From another seasoned insurance defense attorney: " I have a good feel for which defenses appeal to people with common sense and which ones don't. My insurance company clients let me settle when I recommend it and go to trial when I recommend it. Just because a person is a judge doesn't mean they have a lot of common sense. I have more faith in a common sense verdict from several jurors than from any one single person, even a judge."

Although I have never heard this from a defense counsel I think there is a big additional reason: A lot of jurors arrive at court thinking that Plaintiff injury cases are all about spilling coffee in your lap and then suing McDonald's or suing McDonald's because you put on too much weight eating fast food. If the trial judge will allow enough time for the process of selecting a jury a skilled Plaintiff's counsel can draw these people out and eventually get them off the jury. However, most judges don't have extensive trial experience before being appointed and often try to rush the jury selection process so that it almost becomes a random assignment of 8 people on to the jury. This makes the trial a big crap shoot. Since jury trials are expensive, most plaintiff's attorneys think they have a good case before they undergo the expense of a jury trial. Therefore, turning the trial into a crapshoot is not so attractive if the plaintiff has a good case.

Also, although no defense attorney has ever told me so directly, I believe an additional reason for the defense demanding a jury trial is this: Jury trials are more expensive and time consuming than judge trials. In some courts there may be a longer waiting time to get a jury than a judge trial. By opting for the more expensive trial option, and possibly the longer delayed trial option, defense counsel with the approval of their clients may be hoping that the Plaintiff will take a lower settlement offer. Finally, there may be slightly more chance of appealing a jury verdict than a judge's findings of fact. This is because a jury trial involves a lot of technical jury instructions which can be the basis of an appeal.

All in all, the defense option to continue to fight the case is probably increased with a jury versus a judge trial. (Remember, if the defense wanted to settle the case it probably could have.) But, the defense has to weigh this against the real possibility that if the jury gets angry at the Defendant it is likely to award the Plaintiff a lot more money than a judge. This is one reason why in many case the Plaintiff's attorney would demand a jury trial if the defense did not. Another reason is that in many situations the Plaintiff's attorney may reasonably figure that a particular judge's personality is not likely one that will view the injured plaintiff with appropriate compassion.

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