Will A Personal Injury Case Go Before A Judge Or A Jury, And Does The Plaintiff Have A Say In The Matter?
For any injury case in Florida, we always request a jury trial, as a matter of right. This is because judges decide law. Consider a game of baseball: who calls the balls and strikes? The umpire does, and similarly, the judge calls the “balls and strikes” when it comes to the law. The jury, on the other hand, is there to decide the disputed issues of fact. They weigh the evidence, determine whether or not a particular witness is telling the truth or being deceptive, and solve those issues and material facts.
For example, if one witness says that the driver was going 50 miles an hour and another witness says that the driver was going 90 miles an hour, that would represent a factual issue in dispute that the jury would be tasked with solving. The jury would decide which witness is telling the truth and who was actually speeding, while the judge would be there to determine issues of law, such as the fact that driving over 55 miles per hour is against the law. This illustrates the key distinction between the jury and judge.
Another reason to take a case before a jury rather than a judge is because jurors are emotional creatures. Although jurors say that they can put bias and emotion aside and rely only on the evidence when making a determination, they’re human beings, which means they make mistakes, and empathize with the plaintiffs before them.
There are great judges who probably do a great job handling these case, but we don’t want our clients’ cases decided by one person. Who would want one person deciding who wins a political election? Reasonable minds can differ, which is why we choose jury trials. The defense, on the other hand, would prefer to do bench trials with judges. This is because they prefer taking emotion and feeling out of it and relying on a calculated, analytical determination.
Due to COVID-19, our jury trial system hasn’t been open for a while, and I have some very real reservations about Zoom trials. In the movie We Are Marshall, Matthew McConaughey was trying to get football back at Marshall University, and he says to the dean of Marshall, “You didn’t ask your wife over the telephone,” meaning that he wanted his dean to actually go to the NCAA physical location and lobby for him. I think the same applies to jury trials; there is something lost by doing them electronically over Zoom. I want people to feel the emotion—I want it to be palpable in the courtroom, which is why I always want a live, in-person jury trial.
During Jury Selection, How Much Information About The Case Will The Personal Injury Attorney Relay To Potential Jurors?
Jury selection is commonly called voir dire, which means to “say what is true” in Latin. In Florida, we’re allowed to provide potential jurors with a broad statement of the facts. For example, we can say, “This is a car crash case where the plaintiff was rear-ended and suffered injuries that they allege were caused by the crash.” For a particular case that involves a herniated disc and the lumbar spine, we might ask the jurors whether they or anyone they know has ever experienced a lower back injury.
As far as very detailed specifics, we’re limited in that regard. Some states, including California, allow more specific information to be shared during a 10 to 15-minute opening statement, which addresses the evidence that the attorney plans to present. In some cases, they’ll show actual evidence from the case. In Florida, however, this level of detail is not permitted.
Jury selection is arguably the most important part of trial, because it is absolutely critical to get rid of bias in the jury. If potential jurors show strong feelings one way or another prior to even hearing the evidence, then that is a problem that indicates bias, and those jurors should not be selected. If jurors with bias are selected, then either the plaintiff or defendant will start the case with an advantage, which should be avoided.
There are many metaphors that can be used to illustrate this, my favorite being the pie eating contest metaphor: if there’s a pie eating contest between an apple pie and a pumpkin pie and I am asked to judge between the two, I am going to be biased, because I can’t stand pumpkin pie—I’m a fruit pie kind of person, and I’ll choose apple pie over pumpkin pie every time. It doesn’t matter how perfectly made the pumpkin pie is, because my bias against pumpkin pie is that strong. I think that the person who made the pumpkin pie would want to know in advance that I have strong feelings against pumpkin pie, and it may well be decided that I am not the best person to decide on this particular matter. Perhaps I would be better suited to judge a barbecue contest (or a criminal law matter rather than a personal injury case involving an auto accident).
We invite our jurors to be brutally honest with themselves, and to tell us if they have strong feelings one way or the other. We want to eliminate the fear that jurors may have of opening up and speaking their mind without worrying about hurting anyone’s feelings. Ensuring that our jurors aren’t biased is very important, especially with tort reform, and the fact that members of our public are bombarded with messages that personal injury trial lawyers are just ambulance chasers who are after money, and who don’t care what sort of hassle it creates for everyone else. This perception is one that we are constantly fighting.
We address different types of bias, such as those against awards for large sums of money, and placing value on things that cannot be seen, like pain and suffering. We really try to nail down the biggest problem areas and make sure that our jurors are open-minded, fair, and willing to see both sides. Note that both sides means that we also want to weed out the jurors who have a bias that may actually help our case. For example, if a juror says that all insurance companies are evil and should be destroyed, we won’t want to select that juror, because while that bias may work in our favor, it wouldn’t lend itself to a fair fight, which is what we and the jurors want.
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