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Trial FAQ

Questions about the jury system

It is particularly hard coming to the legal system from the outside, to understand how or why your case would ever end up going to trial. So, if DeShaw Trial Lawyers seems more reserved than you about the facts of your claim, or our ability to settle your claim for a fair amount before trial, here are a few things we’d like to share before you step into the courthouse:

First, let it be said that DeShaw Trial Lawyers is always in favor of letting the jury know the WHOLE truth about a case. For that reason, you will rarely see our lawyers object to the entry of truthful information during trial, even if there may be a legal basis for objecting. But, many court procedures prohibit us from telling the jury very important information that would assist them in making correct decisions on a case. Here are a few things that you should know:

The “I” word

Under no circumstances can we mention the word “Insurance” in trial, even though the person who is being sued has insurance. You cannot mention Insurance, nor can your witnesses including the doctors, police or anyone else who may testify for you. If you do, the judge will grant a “mistrial” and we will have to try the case over again. Insurance is available in at least 99% of all auto accident cases that go to trial. But, the insurance industry has lobbied the legislature and within the legal system so diligently that it has created a set of court rules that absolutely prohibits the lawyers representing injured people from telling the jury the truth that the little old lady in the defendant’s chair has had no choice in whether she is sitting there or not. She cannot settle the case even if she believes you deserve everything you are asking for. The insurance company is completely in control of how much to offer the injured person, whether to settle the claim or not, and what they should contest in the lawsuit. So, even if the little old lady sitting in the defendant’s chair wanted to settle the lawsuit for the same amount as what the injured person is requesting, the insurance company won’t offer the money. And, in Oregon it is almost impossible to sue an insurance company for improperly denying a claim or delaying the payment of what is due. Again, effective political contributions, and legal maneuvering by insurers have resulted in the worst insurance laws in the United States in Oregon. Even when the insurance company refuses to pay its own policyholder for losses at the hands of an uninsured motorist, there is almost no recourse for the insurance company’s own customer.

It’s cheaper to deny the claim than settle

Believe it or not, insurance companies have saved billions of dollars since the mid 1990s, by improperly denying claims, and otherwise forcing litigation by paying far below the jury verdict average to settle claims. Frivolous defenses to legitimate claims have resulted in an increase in litigation, against people insured by these companies. This is part of a deliberate claim handling program implemented by McKinsey & Company, the same consulting firm that set up Enron’s business model, at many of the nation&s largest insurance companies. But, in jury selection, jurors often mention that if the injuries are real, the case should have settled with the insurer. That is exactly what the insurance company is hoping for. It doesn’t matter if they offered $0.50 on a claim worth $500,000. The jury will never know, because the lawyers are prohibited from ever mention the settlement negotiations during the trial. McKinsey & Company counted on this when they told Allstate Insurance in the mid 1990’s to quit treating people with “Good Hands” and instead treat them with “Boxing Gloves.” When Allstate forced more litigation and posted record profits, the rest of the insurance industry followed their lead. It is now standard operating procedure in the insurance industry to spend multiple times what a reasonable settlement would be to fight the claim, simply to prove to injured people and their lawyers that filing a claim for injuries is more trouble than it is worth. That is because the end result is that most lawyers will not take the cases, and people will not file the claims themselves. These improper denials have led to a huge spike in bankruptcies in the United States, the leading cause of which is an inability to pay for medical bills. So, when jurors turn injured people away, everyone but the person at fault, and their insurer pay for the damage. Instead, the jurors take the financial burden themselves through higher taxes to pay for the bankruptcy. For more, see the article entitled “In Tough Hands” in BusinessWeek.

Paying insurance companies money for nothing

In Oregon, the money that is paid out by your own insurer for your medical bills through “Personal Injury Protection” Insurance, must be paid back to the auto insurer under Oregon law before anyone else is paid, including the injured person. But, the insurers refuse to pay any of the costs, or the attorney fees to collect that money. Instead they force their own customer to pay to get the money back through a lawsuit, if the settlement offer is not enough to cover the medical bills. In the end, when the jurors award a small amount of money, all, or almost all of the verdict will go straight back to the injured person’s auto insurer instead of to the injured person for the injuries, or for any future treatment. Injured people often ask “well then why do I pay insurance?” Its simple – the government forces you to buy it, because insurers lobbied them to make it mandatory. But, for those who are injured, the person’s own insurance payments for medical care turn out to be nothing more than a short term loan that you have to pay the costs of a trial to collect for them.

When “It’s my fault” really means “It’s your fault”

Most of us would like to think that when someone who has run a red light or done something wrong says “This is my fault” it actually means something. Particularly when the person gets out of the car and says “it’s all my fault” right away. That was the case at a time in society when someone’s word and honesty actually meant something. Experience in trials has taught us that regardless of what the person who caused the collision said at the scene, it will be entirely different after their insurance company, and the defense lawyer who works for the insurance company, gets ahold of the person. Many defendants will evade the truth on the witness stand if they think it will allow them to escape personal responsibility for their conduct. Most of the time the judge will not let us introduce evidence of the admission at trial if the defendant contests the admission at a later time. And so, the jury goes into deliberations incorrectly thinking that there was some dispute about who was at fault from the day of the collision forward.

The Golden Rule

In trial procedure terminology “the Golden Rule” means that we as trial lawyers cannot ask the members of the jury to put themselves in the position of the injured person when considering the value of a case. While this is the rule of the courts, this is yet another disadvantage to the injured party, given that the jurors should be deciding what they believe such injuries would be worth to them if they had the same injuries of the plaintiff. What “the Golden Rule” does is emotionally insulate jury members who are already numbed by daily violence in the media, to the value of human life and human loss. As the insurers know, if the jurors don’t feel the loss personally, they won’t find as much value in the loss sustained by the plaintiff, as it is actually worth to the injured person. All we can hope for is that through careful jury selection, and honesty by the jurors during jury selection, that we will have a jury of intelligent and caring people who will fully appreciate the significance of the human loss you have sustained.

Runaway Jury

The media and political hype about “runaway juries” and million dollar verdicts is false. The truth is:

Jury verdicts are down.

Lawsuit numbers are down

The medical malpractice crisis is a myth. Doctors are not leaving states due to malpractice suits, and there is no correlation between malpractice lawsuits and doctors insurance premiums. Insurance companies have used lawyers as a way of raising insurance rates for doctors, and even the insurers say there would be no decrease in malpractice premiums if a state instituted “caps” on damages.

Now You See It, Now You Don’t

It is a scientific fact that there is no connection between small vehicle damage and small occupant damage. Any study that says otherwise has been funded, directly or indirectly, by the insurance industry, with the intent that such evidence can be relied on by experts defending their cases.

In reality, some of the most significant injuries to passengers occur in cars where the visible damage is small. But, insurers know that jurors can be misled to believe a person cannot be injured if pictures show small amounts of damage to their car. So, defense lawyers argue to the judge before trial that vehicle damage pictures are relevant for the jury to see if the insurer took photos where it looks like there is a small amount of damage, but then argue they are irrelevant for the jury if they show damage. The result is often that minor vehicle damage pictures are provided to the jury, and that serious injury photos are excluded from the jury.

DeShaw Trial Lawyers is in favor of the jury seeing everything. We trust that they are smart enough to understand that just because the car wasn’t crushed, doesn’t mean that the person inside wasn’t injured.

Why you can’t trust anyone who says no vehicle damage = no occupant damage

It is a scientific fact that there is no connection between small vehicle damage and small occupant damage. It is also a scientific fact that there is no minimum force at which injuries are known to occur in human beings. Despite this, a full scale insurance campaign has occurred since the 1990s to condition the public that less than $1000 in vehicle damages = no injury. This campaign, sometimes referred to as “MIST” (Minor Impact Soft Tissue) or “No Crash, No Cash” has been extremely profitable for insurers. Insurers count on that conditioning, and paid experts to refute injuries in these collisions, relying on studies paid for by the insurance industry, in order to make Billions of Dollars in profits by denying legitimate injury claims. They have accomplished this by limiting settlement offers to $3,000 or less on any claim with less than $1,000 in vehicle damage regardless of the injuries. When the injured person cannot accept that because of a serious injury, they get the “Boxing Gloves” treatment from the insurer, as they are forced into several years of litigation in order to get what is clearly owed to them.

What the jury will never hear is that in some cases the insurance company actually owns the auto body shop where the “estimate” of vehicle damage is done. Even in the case that they don’t own the garage, most major insurers have “affiliate” programs in which the insurer exchanges referrals for the garage’s agreement to use used or “aftermarket” (non-manufacturers) parts to decrease the cost of the vehicle repair. They also seriously decrease the labor rates to keep the prices down. Vehicle damage estimates are almost always external only, never estimating the true damage to the suspension, frame or internal structure of the car. This allows insurers to get estimates below $1,000 that are actually worth substantially more. In the end, it is only this manipulated evidence that a jury will see. And, they will improperly assume that if there isn’t much vehicle damage, you couldn’t be injured by such a small amount of force.

In reality, some of the most significant injuries to passengers occur in cars where the visible damage is small. This is because the shock absorbers in each car’s bumpers accelerate the person forward on rebound much quicker than the acceleration that would occur with significant vehicle crush. It is this acceleration that can cause permanent ligament injuries in the occupant’s neck, and other permanent injuries.

Despite this, defense lawyers parade around vehicle damage pictures before the jury, and refer to the collision as a “bump” or a “tap” in hopes that a jury will buy into a fabrication of the insurance industry.

Cash for trash

“Cash for Trash” is insurance company jargon for the use of doctors who trade their vows to “do no wrong” in exchange for “I will say anything you pay me to say.” This results in a handful of doctors making hundreds of thousands, or millions of dollars per year, providing reports which “trash” injured people, thereby depriving them of their insurance benefits under their own insurance policy. Insurers then use these same doctors to “trash” the person in front of the jury, claiming that the person was never injured in the collision, or that they have psychological problems from their mother or father 40 years before the collision happened. For many people, it is hard to believe that doctors will do this. Just wait and you will see it happen, either during the “Independent” Medical Examination your insurance company will require you to attend (or they will terminate payments for your treatment), during trial, or both.

One strike, you’re out

Often times, jurors will think that you already received money from some other source, and that you are just looking for more. More jurors think that if the trial doesn’t go well, you can come back again for money later. Neither is true. There is only one opportunity to get all of the money for the past and future problems caused by the collision, and that is the trial. If the jury provides nothing, you get nothing. In the court system if you get one strike, you are out.

All trial lawyers are privileged people with too much money who feed off hard working people

There are a couple parts to this one, and so lets deal with these one at a time.

First, it is very rare that the person who is a defendant in a case will ever lose any of their own money. As discussed above, over 99% of all defendants have insurance in our cases, and it is only because of heavy lobbying by the insurance industry that we are unable to tell the jury the truth about that in an honest way. Instead they hide behind a false appearance of the money coming directly from the defendant, so that juries will give less than what the injured person deserves.

Now to trial lawyers and money. It is actually quite rare that the best plaintiff’s lawyers are from privileged families, and attend schools like Harvard or Yale. The lawyers born with a silver spoon, to affluent parents, are the lawyers that work for the insurance companies representing defendants and charging $200-$400 per hour or more, every minute they work on a case. They make $100,000 per year the first year they leave school and their salary goes up substantially from there. They get paid regardless of what the jury decides. But, that isn’t the person representing the injured person.

Quite the opposite is true of the trial lawyers that represent injured people. Of the Top 100 plaintiff’s trial lawyers in the United States, it would surprise most people to find that almost all of them came from disadvantaged, or downright desperate conditions. These are people who have reached their standing in life through staggering hard work, overcoming the many challenges handed to them in life. They are people who achieved the American Dream against all odds, sacrificing the normal pleasures like “down time” or time for social activities, in order to work for someone else’s behalf. Most often, we spend our own money to finance an injured person’s case, because the injury prevents them from having the money to fight the legal battle against an insurance company that could outspend almost any American citizen, including Bill Gates. Some trial lawyers will go so far as to sell the family home, in order to finance a client’s case, with absolutely no guarantee that they will ever get the money back. And, unlike the defense attorneys from Harvard who bill at hundreds of dollars every hour, we don’t get paid one cent, unless we recover money for the client.

Everyone’s insurance rates will go up if the jury provides a large verdict

The reality is with many of the major insurers, they don’t even want to hear about the case at “home office” (the central headquarters of an insurer) unless the verdict is over $120 million. Needless to say, it would take a giant verdict to get any insurance company’s attention. Despite what the media might suggest, there are a small handful of cases nationally in a single year, that result in that kind of verdict. Almost all of the big money cases are business cases, not cases involving injured people. And, even if insurers get hit with punitive damages for their improper conduct, or outright fraud, they are themselves insured for that by what is called “re-insurance” – insurance for the insurance companies. These re-insurance companies, located in places like Switzerland, provide insurance for almost every serious financial loss incurred by an insurance company. Most of the time, though, cases of $1 million or even more are not even worth consideration by an insurer, because they are already budgeted, and expected by the insurance industry. But, as insurers have conditioned the public to believe that jury verdicts are “out of control”, jury verdicts have fallen to their lowest point in thirty years. Since insurance rates keep going up, despite this trend, all it means is that insurance companies don’t have to pay out the money that they are taking from their policyholders, resulting in record profits, and bonuses for their executives.

The McDonald’s Coffee case and The Stella Awards

Few people have any idea, what really happened in the case between Stella Leibeck and McDonald’s. But, as you will see at trial, 80% of most jury pools will raise their hand when asked if the McDonald’s coffee case will pose a problem for them in deciding your case. That’s because certain elements of the media twisted this story into something it simply is not, for their own political and financial advantage. For a full account, see our page on the McDonald’s Coffee case. But the basics are these: After McDonald’s had already received over 700 complaints that its coffee would cause 3rd degree burns due to them keeping the temperature at 190 degrees, the company decided against reducing the temperature of the coffee to a safe temperature, and against labeling the coffee as dangerous for human consumption, because it would decrease their profits. The end result was certain to be a repeat of the Ford Pinto scenario (another explosive social problem stopped by lawyers) – where if increased profits can be made at the expense of a few people, don’t make the change if you can pay the injured people off for less than it would cost in profits. Stella Leibeck’s case really never would have gone anywhere though, had it not been for the fact that McDonald’s refused to pay for Leibeck’s medical bills caused by the burns. That’s right- she asked for $0 for her injuries, and McDonald’s refused. Since they also refused to pay for the medical bills she underwent- including a surgery for the burns, she had no choice but to sue to company for their intentional act. When the jury found out about this decision to keep the coffee at a temperature so hot they knew it would injure people, they returned a verdict equal to two days of McDonald’s profits on coffee. Not two years; two days. But, McDonald’s wouldn’t pay that either. They appealed the case, and eventually settled the case for a much smaller amount of money. But, that doesn’t matter. The only message conveyed to the public was that a woman had successfully sued McDonald’s for millions because she spilled coffee on herself.

This story led to massive revolt by juries against legitimately injured people. We see the backlash in every case. And, the story then took on a life of its own via a series of stories about other “frivolous lawsuits” entitled The Stella Awards. The only problem is that the e-mails broadcast over the internet about the nation’s most ridiculous lawsuits are in fact comprised of false stories about lawsuits than never existed, and sent under the name of a non-lawyer at a law firm that doesn’t exist. In short, the jury bias, upon which they turn away legitimately injured people is based upon a completely false sense of doing the right thing. What they are in fact doing is severely corrupting the American Judicial system, and the viability of one of the cornerstones of the United States of America – the right to a trial by jury.

What few people in the public know about is what we lawyers call “McDonald’s II.” This time, a young couple takes their three month old baby into a McDonald’s. While there, one of the parents puts a McDonald’s coffee up on one of the counters inside the McDonald’s. Another child in the restaurant hits the coffee, spilling it onto the baby and causing 3rd degree burns just like McDonald’s coffee did on Stella Leibeck. No big surprise, as McDonald’s never decreased its coffee temperature, even after the Leibeck burn case. The result – McDonalds again denied settlement to the baby’s family and the case went to court. This time, the jury returned a zero verdict, leaving the baby’ family responsible for the full medical bills. In the juries’ eyes, the world is a better place where a baby can suffer 3rd degree burns from 190 degree coffee, than it would be by returning a large enough verdict to suggest it was unacceptable to serve coffee so hot McDonald’s knew it would injure the customer. More and more, those are the messages we see juries return.

Lawyers are putting doctors out of business

The truth is that this is a lie, which the insurance industry has successfully lobbied with doctors and the public. But, regardless of whether you have a medical malpractice case or not, the bias against “greedy trial lawyers” will hurt your case.

The reality is that over 100,000 people in the US die every year from Medical Malpractice. It kills more people per year than a 747 plane crashing every day of the year. Imagine the horror of the American population if a jumbo jet crashed every day for a year. If these deaths were caused by an enemy we would declare a war to stop it. But, when lawyers try to stop this serious loss of life every day, they are viewed as evil by the public. Now, on top of the 100,000 that die every year from medical malpracice, prescription drug errors kill another 95,000 people every year. This is a very serious public safety issue.

Despite this, very few of these cases ever reach a lawyer. Even fewer get accepted by a lawyer. Even fewer make it to trial.In fact, in a study conducted by the group Public Citizen on all known medical malpractice claims nationally from 1990 to 2006, the average payment for a medical malpractice verdict dropped 8%, The total number of malpractice judgments and settlements dropped 15.4%, and the number of payments made dropped more than 10%. In summary, the verdict size, number and payments in medical malpractice lawsuits all dropped significantly. So why are you being told there is a “crisis” caused by trial lawyers?

But, in order to achieve record profits despite natural disasters like Hurricane Katrina, the insurance industry had to figure out a way to get juries to turn away injured people with nothing, and then deny settlement so that they were forced to go to trial. And they picked the most respected, and well financed group in society to turn the public against lawyers – the Doctors.

As doctors have donated millions of dollars to campaigns for “Tort Reform”, and sought the media’s help turning the American people against the lawyers – the only group who would help them when they were themselves injured, the insurance companies have laughed all the way to the bank, posting record profits despite the worst natural disasters in US history. And after years of improper profiteering in the medical malpractice and auto accident arenas, they decided to deny the Katrina home claims too. There have been documents shredded providing proof that the damage to these homes was caused by wind damage that is covered. But, has taken a threat of Congressional investigation, and the power of the jury system to force the insurers to pay on this too.

The reality is that the present rate of medical malpractice rates have nothing to do malpractice lawsuits. Even the insurance companies admit that even if there was tort reform in every state, they would not decrease the doctors malpractice insurance rates. For a fully researched book on this topic see “The Medical Malpractice Myth” by Tom Baker. Even the American Medical Association had to agree after reading the analysis, that there is no link between medical malpractice suits and the staggering insurance premiums that insurers are charging your doctors. So, don’t be fooled. This is about insurance company greed, not about lawyers causing a “litigation crisis.” Lawyers are the only thing that stands in the way of an explosion in what is already the 3rd leading cause of death in the United States – preventable medical malpractice. If jurors want to take out their anger on the cause of this problem, they should provide staggering verdicts for medical malpractice to make the problem itself go away. Safety and life should be sacred, not insurance company profits.

Punishing Bad Conduct Helps Other People

Almost all of the large jury verdicts include what are called “Punitive Damages” – amounts of money solely meant to punish the defendant for particularly bad conduct. In some states like Washington, there are no Punitive Damages. And, in Oregon, almost all of the Punitive Damages awarded by a jury do not go to you, they go to the State of Oregon’s Crime Victim’s Compensation Fund, a fund set up to help people who are injured by people committing a crime who have with no insurance. So, both you, and the lawyers, get very little of what the jury awards in Punitive Damages in a case.