Month: June 2015

Jury Trials In Personal Injury CasesJury Trials In Personal Injury Cases

Our founding fathers did not foresee subprime mortgages, credit swaps, collateralized debt obligations, and the housing bubble, but they did foresee the need to preserve the rights of citizens to have jury trials in civil cases. The Seventh Amendment to the U.S. Constitution reads as follows:

Amendment VII: Rights in Civil Cases

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. 

In today’s legal community are citizens getting their day in court in front of a jury of their peers? The answer is generally no. There are several reasons for the lack of use of the jury trial as a means to resolve dispute is civil cases.

  • Rise of contractually mandated arbitration clauses. For example, take a look at the typical automobile insurance policy. It usually contains a clause to the effect that in uninsured or underinsured motorist cases, each party will choose an arbitrator, and the two arbitrators will select a neutral. (In Pennsylvania, since the holding in Insurance Federation vs. Koken, auto carriers are no longer required to have arbitration clauses in their policies. The implications of Koken, and whether the ruling was more favorable to claimants or to insurance carriers will be left for another article.)
  • Greater use of Alternative Dispute Resolution (ADR) as a means of resolving claims for damages.
  • Court mandated settlement conferences.
  • Impossible time requirements and notice of trial imposed on litigants by the Courts. For instance, it is not uncommon in Philadelphia and Montgomery County to be on twenty four hour notice, or less, of an upcoming trial. So while litigants are made aware that their case may be called for trial in any particular month, the litigants are not given anything close to a date certain for trial. This can place severe constraints on parties, witnesses and expert witnesses. It is no surprise, therefore, that some counties impose these constraints on parties as a method of clearing their dockets of cases by forcing the parties to settle.
  • Lack of trial experience of counsel. ADR is a good way to resolve some personal injury cases. But, with the increase of the use of ADR, and mandated arbitration, fewer and fewer personal injury lawyers are gaining actual jury trial experience.

Trial lawyers represent people who can least afford lawyers, which is why the contingent fee system in personal injury cases is so important to ensuring access to the court system. It evens the playing field. While alternative means of resolving disputes is useful, helpful and appropriate in some cases, other cases require a hearing in front of a jury as a means of maximizing a client’s claim. As long as the client is informed of the trial risks and related expenses, counsel must be ready to utilize the jury system.

Is the recession affecting my personal injury practice?Is the recession affecting my personal injury practice?

Yes, but not the way the recession is affecting everyone else.

What I’ve notice is this: Vendors I deal with are more willing to negotiate prices with me. Many of my clients are more anxious and hope that the courts will give them earlier trial dates, (they won’t). Anecdotally I’ve noticed that insurance companies are stingier with their settlement offers, and are slow in delivering settlement checks.

However, personal injury law practices are much more affected by changes in the law than the public is aware of. Washington, Harrisburg as well as the state and federal courts are constantly making changes in the law that affect the rights of injured plaintiffs. Attacks on victim’s rights are cyclical, as are changes in the economy. Those cycles usually do not go up and down at the same time. I certainly hope to ride out the recession like everybody else. What’s coming down the pike to attack my clients’ rights is as of now an unknown, but whether or not we are living through a recession; there will certainly be attacks of the rights of accident victims.

Robert Bork: Tort Reformer and HypocriteRobert Bork: Tort Reformer and Hypocrite

Tort reform is a buzzword for limiting the average guy’s rights to the court room by big business and their supporters. When one time Supreme Court nominee Robert Bork settled a case against Yale University last year for injuries he sustained when he fell at the alumni club, he reached the height of hypocrisy.

Bork sought $1 million in damages, claiming the Yale Club was negligent in not providing a handrail or stairs to the stage on which he was set to deliver a speech in early June 2007. He was 79 years old at the time. His lawsuit stated the fall caused a large hematoma to form on his leg, inflicting “excruciating pain” and requiring surgery and months of medical treatment.

He is considered one of the leaders of the tort reform movement. This is a man who spent a large part of his professional life going out of his way to limit the ability of people to seek compensation for personal injuries. I guess his own rules don’t apply to him, and that’s the irony. He should have and did have the right to be compensated for what sounds like pretty serious injuries. Everyone should, for legitimate claims. Taking those rights away from people is just dead wrong. I wonder if Bork realizes that now, late in his life.