Insurance? Or, why are you suing this nice old lady instead of an insurance company?
Jury trials start with a Q&A called “voire dire”--which is a Latin term for “to hear them speak the truth” (or something close to that). Voire dire is where the lawyers for both sides get to ask the jury pool about their likes and dislikes, and thoughts about various matters, with the goal being to root out hidden (and not so hidden) biases. We hope to weed out the jurors who already have their minds made up before they hear the evidence. We can ask the court to “strike” a juror “for cause,” if the bias is obvious (to the judge). Or we can use one of our 2 or 3 free “strikes” to remove a juror we just think has a less obvious bias. Lawyers are not very good at weeding out these biases. But, really, none of the above is what I wanted to talk about today. Let’s get to that:
Voire dire is the one part of the trial where the jurors get to interact with the lawyers. In addition to us asking the potential jurors questions, jurors will use this time to ask the lawyers some questions. In nearly every jury trial one of the questions we get is this: why are you suing this nice man/woman/child? Didn’t they have insurance? We don’t know how to answer the question because it opens a minefield to a potential mistrial. So, when the question comes, the lawyers stiffen up and look to the judge to answer. The judge will say something like, “don’t worry your pretty minds about such things. That’s just not something you need to know about.” Well of course it is! And of course, you have a valid concern. As a juror, you want to do the right thing. You don’t like to think that this nice person who has been dragged into court as a defendant because they made a simple driving mistake—and don’t we all make those mistakes—is going to have to pay out of pocket. Or worse, lose their house over a momentary lapse of judgment. And you know of course, that is why we have insurance! LET ME ASSURE YOU, 99.9% OF THE TIME (and I may be low on this percentage), NOT ONLY IS THE DEFENDANT INSURED, BUT THE INSURANCE COMPANY IS PAYING FOR THEIR DEFENSE AND WILL PAY ANY JUDGMENT THAT RESULTS.
So why are you, the juror, not told this truth? Because the people who make the rules (insurance companies, maybe?) don’t think you can be trusted with this information. They think you will not treat them “fairly” if you know they are calling the shots and will pay the “fine.” This rule is even enshrined in a “rule of evidence”:
“Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully . . . .” (Federal Rules of Evidence 411 (all of the states also have a similar rule in their state evidence rules))
So, if we were to tell you that the defendant has insurance, the court would grant an immediate “mistrial.”
Unfortunately, the rule most often works an injustice. Since you, the jury, don’t want to devastate the financial fortunes of the nice person “on trial,” you unknowingly give the insurance company a “pass.” Not only does this create a windfall for the insurance company, but it adds further harm to the injured plaintiff. At least now you know why we had to sue this “nice elderly lady.”
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