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JURY TRIALS

We are often asked by clients, prospective parties, witnesses and other interested persons how a personal injury jury trial is conducted. As a result, we decided to use a section of our website to help our readers better understand the jury trial process.

While not all trials are conducted exactly the same, they are generally very similar. The ten categories in this section describe the basic issues surrounding a jury trial and should help you feel more comfortable with the trial process should you ever find yourself involved in one.

Additionally, it is hoped that you will gain a further appreciation of the fundamental fairness of a jury trial and why it is often referred to as the cornerstone of democracy.

Click on a topic from the following list to learn more about what is involved with a Jury Trial


Jury Duty     The Role of the Juror
Selecting the Jurors     The Role of the Judge
Evidence of Insurance     Medical Testimony
Expert Witnesses     Costs and Fees
Closing Arguments     The Verdict


Jury Duty

The most powerful person in the courtroom is a juror. Our judicial system was founded on the idea that the jury, and the jury alone, is the best decider of truth Each juror is charged with the responsibility of sorting through the evidence and finding truth so that there may be justice for those who have suffered a loss.

The obligation to sit as a juror is as critical to our country's liberty as the obligation to take up arms and defend it. There are no "big" or "small" cases. The right to a jury of one's peers is so important that all matters before a jury are "big" enough for men and women to have fought and died for the right to a jury trial.

The last thousand years of the development of "English Law," which is the basis for our country's civil justice system, has been marked with turmoil and strife with one of the most hard fought for points in the conflict being the failure of the King to provide for a trial by jury. Indeed, when The Declaration of Independence was signed on July 4, 1776, it listed several specific reasons for absolving "all allegiance to the British Crown." Prominent among those reasons for the Declaration of Independence was the failure of the King to provide for a trial by jury.

Everyone should welcome the chance to participate in what is the cornerstone of democracy: The Jury Trial.


Role of the Juror

The Constitution of the United States of America grants certain powers to the three branches of government, whether the assaults are from a tyrannical government or a giant corporation, our Constitution, steadfastly rises to protect each person's fundamental rights.

But the real brilliance of the Constitution of the United States is that it provides additional and specific safeguards between the powerful and the weak; between the fortunate and the unfortunate; between the rich and the poor.

Of all the additional and specific constitutional protections, the most important is the assurance of having our grievances heard by a jury of our peers. Jurors, and jurors alone, are able to secure our constitutional protections in today's courtrooms. Neither the attorney nor the victim of a crime can deliver justice. The Judge is merely the referee to help a trial be fair. Only a jury, solemnly sworn to uphold the laws and constitutions of the State of Florida and the United States of America without favor or bias, can protect the weak from the strong, the impoverished from the well-connected, and the powerless from the powerful.

The role of the juror is to listen to all the evidence and reach a fair judgment. It seeks the truth. It and it alone decides what is true, fair and just. It does so without regard to status or position. The jury is the last refuge in the modern world where everyman may come to receive justice.

The jury is the cornerstone of democracy.


Selecting the Jurors

The number of people on a jury depends on what kind of case is at issue. Civil cases require six jurors while criminal trials require between six and twelve, depending on the nature of the crime. In all cases, the selection of a jury is one of the first things done in courtroom. The jury is selected by the attorneys on both sides after each are allowed to question prospective the jurors.

Some jurors find it odd, even insulting, that before the trial begins, attorneys from both sides will question potential jurors about a wide range of topics to find jurors who likely will be impartial. It should be obvious--for example-- that an insurance agent as a juror may have trouble being fair to a company he or his family works for.

There are many other, backgrounds and beliefs that would make it impossible for a juror to be fair in one trial while he or she may be the most fair in another type of case.

The jury selection process by which the final panel of jurors is selected is not meant, by either side, to offend anyone. That is the last thing wanted by either. However, there is a legitimate period of questioning and answering to determine if in that particular case a juror may or may not be able to render an independent verdict.

Once the jury of six or twelve has been selected, the case then proceeds to trial.


The Role of the Judge

The judge is responsible for making sure the court proceedings are orderly, follow the law and are fair.

A judge's duties include controlling any and all facets of the trial, including the introduction of evidence, testimony of witnesses, argument of counsel and deciding on questions of law.

The judge is an impartial figure; indeed, his role is akin to a referee. That is to try and have a fair trial without regard to which side is popular, which side is favored by public opinion, or whether or not the judge agrees with the law.

At the close of the trial, the judge will instruct the jury on the law to follow and apply in reaching a verdict. These are called "Jury Instructions." That is to say that the Judge gives to the jury instructions as to the law it must apply to the facts it has heard during trial. Ultimately, it is the jury's responsibility to determine the facts and to apply the law given by the judge to those facts.

In reaching its verdict, a jury should never speculate about how a judge might evaluate the testimony of any witness or any other evidence in the case (or that the judge prefers one verdict over another) based upon the judge's actions and/or expressions during trial as that responsibility lies exclusively with the jury. Indeed, the worst mistake a judge can make is to indicate to a jury that he or she favors one side over the other.

As explained below in other sections, following the verdict by the jury, the Judge's role is then to apply principles of law as to costs, fees and other legal matters.


Evidence of Insurance

In Florida, there is the unusual rule that it is not permissible for a jury to learn that the defendants have insurance to pay for the damages the jury awards to the plaintiff.

Although Florida is in the extreme minority of states in which a jury cannot be told that there is insurance, the law is based on the belief that juries cannot be told that there is insurance or how much insurance exists because the jury's verdict may be influenced by the amount of insurance. Apparently, the Florida Legislature does not believe the concept that by creating the wrong impression that there is no insurance, a jury will not be also wrongfully influenced.

Most juries already know or believe that there is insurance since they rationally conclude that the plaintiffs and the defendants would not be able to afford taking a case to trial unless there was insurance to pay for the jury award. In fact, it is extremely seldom that a case is taken to a jury trial with no insurance to cover the jury award. The costs of taking a case to trial make it almost impossible to take a case to trial if a defendant does not have insurance.

Once the jury renders its verdict in favor of a plaintiff, the judge will then enter a judgment in favor of the plaintiff, and the defendant's insurance company will then pay the amount of the judgment for the plaintiff up to the defendant's insurance policy limits. Typically, the insurance policy limits for defendants are quite high; otherwise it would be too costly and risky for a plaintiff to take a case to a jury trial if the defendant's insurance policy limits were not high enough to pay the amount awarded by the jury.


Medical Testimony

Medical testimony typically comes from many different persons, not just medical doctors, during a personal injury trial.

First, there is the injured's testimony who can best describe the injury, and how it has affected her or him physically and psychologically.

There are also witnesses called "lay medical witnesses" who are family, fellow employees, and friends who have been in regular contact with the injured person and who can describe the physical and mental state they observed before and after the accident.

Of course, the testimony of the treating physician, who typically knows the injured person best, can be expected.

In addition, there are doctors with specialized medical knowledge who can testify to special issues of diagnosis and treatment.

Many injuries are hard to diagnose with even the most modern technology. Traumatic Brain Injuries, as we are all learning from the soldiers returning from Iraq, are often subtle, but devastating. Subtle in the sense they did not lose consciousness or get a direct blow to the head from the IED, and appears to be walking around "normally." However, the injuries have proven to be real, permanent and often devastating. It is the same with traumatic brain injuries from car wrecks.

There is almost always a medical expert found by the defense that will attempt to minimize the injury and its impact or say it was pre-existing. In particular, for all people but the young victims of accidents, there is almost always some pre-existing damage to the spine that the accident has aggravated. It then becomes a question for the jury to determine how much, if any, of the injured's present condition was pre-existing (existing maybe, but perhaps not affecting the daily life of the injured) and how much was aggravated by the accident and how it will impact the injured person's future life.

In short, the basic question the doctors will address along with the victim and any medical witnesses is what was the injury and will the injured person ever be as good as they were prior to the accident.


Expert Witnesses

Expert witnesses are persons that have more than usual experience, training or education in an area and can help the jury better understand certain aspects of the case.

There are many different types of experts that may testify in personal injury trials. Sometimes, there are economists that explain the economic impact of the injury and earning potential over a lifetime. There are also vocational experts that discuss the cost and likely result of efforts to retrain a person who has been injured and unable return to his or her job. Very often, there are experts in accident reconstruction that build models or make graphic presentations of the accident to understand it better.

Engineers are sometimes used to explain in scientific terms why elements of accidents may seem to contradict common sense. For example, a bumper to bumper accident even at a slow speed can produce a more serious injury than a higher speed impact with greater property damages. The expert will explain that today's stronger and more rigid bumpers act as "force transmitters" and the effect can be like bowling balls colliding and bouncing back causing a more severe injury to a passenger. Other parts of the car are designed to "crumple" upon impact and sometimes a lesser injury can result from a bigger crash.

At the end of the trial, the jury may have heard contradictory expert testimony and must rely on their own common sense and the credibility of each expert.

Indeed, all jury trials are intimately dependent on the common sense of the jury to reach the truth and return a fair verdict given that the testimony of many witnesses, expert and otherwise, often vary in some fashion.

Most of us who do a lot of jury trial work feel that juries almost always get it right in the end.


Costs and Fees

The Contingency Fee

TIn almost every personal injury trial, a "hidden" or unnamed party in the suit is the defendant's insurance company. There is almost always insurance but the laws in Florida do not allow it to be disclosed during trial. The insurance industry is considered politically the most powerful industry in the United States with trillions of dollars in assets.

Considering the fact that top trial attorneys can cost more than $500 an hour, how can the average person afford to hire a good attorney to fight a big insurance company that has unlimited resources?

What has developed as an answer is the "contingency fee"--- which is often called "everyman's key to the courthouse." The contingency fee is simple in concept. If the case is won, the attorney is awarded a percentage of the jury's verdict. If the case is lost, the attorney receives nothing. In short, the attorney analyzes the case and if he or she believes the case is meritorious and the insurance company is not offering a fair settlement to the plaintiff, it is taken to trial.

Obviously, that is a risky decision, and only cases that attorneys feel have serious merit are taken to trial.

The Costs

However, the attorney not only puts all his or her own time at risk, but the attorneys generally have to personally advance litigation costs; often, in the tens or hundreds of thousands of dollars as out-of-pocket-costs. Such costs typically include, for example, filing fees, service fees, expert witness fees, travel, depositions, video presentations, demonstrative trial aids and other expenditures to prepare for trial.

If the case is lost, the attorney recovers no fee, the client recovers nothing for his or her injury and the attorney loses all the costs advanced on behalf of the client.

It is a very risky way to practice law and considerable skill is required in evaluating a case and to determine if it is winnable.

The system has the merit of weeding out bad cases as they are too risky and only those that have merit and are likely to produce a favorable verdict are brought to trial.

Neither the fees or costs are awarded directly by the jury in its verdict. Rather, they are paid out of the verdict amount that the jury finds for total damages to the plaintiff.


Closing Argument

The last time the jury hears from the lawyers in the trial is called the closing argument. After the lawyers finish their closing arguments, the Judge will instruct the jury on the law and then the case is completely in the jury's "hands." Therefore, closing argument (sometimes called "summation") is the last opportunity for the lawyer to convince the jury that his client's cause is just.

As for the process of the closing argument, the Plaintiff's lawyer will go first followed by the attorney for the Defendant. Sometimes, after the attorney for the Defendant gives his closing argument, the Plaintiff's lawyer is allowed to give a "second" closing argument called a rebuttal argument. The reason for this is because the Plaintiff has the burden of proof; therefore he or she has the right to open and close the final stage of the trial to the jury. However, quite frankly, another purpose of the rebuttal argument is to allow the Plaintiff's lawyer to correct or clarify anything the Defense lawyer said that was factually or legally in error.

Most lawyers recognize that jurors want to do the right thing. Therefore, lawyers will try to use closing argument to align the case with the jury's core beliefs. For example, if the case involves significant social issues such as race or religion, the lawyer will probably address them directly. But the primary emphasis will always be the jurors' function as the sole judges of facts.

As a result, during closing argument, a lawyer must make the jury feel comfortable with the facts and they should know what the facts are and what they mean. In reality, the Plaintiff's lawyer will try to "stream line" the facts to assist the jury-a task which is much more difficult than it sounds. After all, even the most "routine" case may have several doctors, different experts, and complex medical terminology. Therefore, the Defense lawyer usually will try to complicate the facts and "poke holes" in the Plaintiff's facts to confuse the jury to rule in the Defense's favor.

It is a difficult but important task for the Plaintiff's lawyer to unite the entire trial's different elements into a coherent whole — with the facts cast in terms of right and wrong, acceptable conduct versus unacceptable conduct.

A closing argument should relate to the jury and be sincere. Too often, lawyers go beyond what was shown in trial, make personal attacks on the other side (both the lawyer and his client) and even try to appeal to prejudices. Usually, a jury will see past these desperate attempts and focus on the facts.

Other than "summing up" the facts for the jury, a lawyer during a closing argument may also quote what a witness stated during trial. The lawyer may refer to exhibits or other evidence which was shown to the jury during trial. Of course, each trial is different and this may not happen, but quotations and references to prior evidence may help the jury understand oftentimes difficult facts.

Of course, during the closing argument, money will be discussed. However, the jury has heard about or seen bills from medical providers, perhaps the Plaintiff's income statements, health insurance payments and even automobile medical payments. However, during the closing, the Plaintiff's lawyer will put those numbers into context; meaning that the Plaintiff's lawyer will ask for his/her client to have his/her past medical expenses paid. Also, the Plaintiff's lawyer will ask for his/her client's future medical bills as well. Naturally, it seems fair that when a Plaintiff has been injured to have their medical bills paid for. There is often great divergence between the Plaintiff and Defendant when they argue about non-economic damages such as emotional distress.

This is one of the most difficult aspects of the closing argument. However, while it would be effective, the Plaintiff's lawyer cannot ask a juror to put himself in the Plaintiff's shoes. Rather, the Plaintiff's lawyer must relay what the Plaintiff has undergone since being injured. Perhaps the jury will hear stories about how the Plaintiff cannot lift her grandchild anymore or throw a baseball with his son.

Naturally, the Defense attorney disagrees as to what the injured Plaintiff is entitled to. Rather, they will argue in summation that the Plaintiff is entitled to little if anything, or just the medical bills. If the Defense is forced to admit that the Plaintiff is entitled to non-economic damages (which inevitable means that the Plaintiff is seriously injured) then of course he will argue that the amount should be minimal. While in all likelihood insurance is paying for the Defendant's lawyer and will pay the verdict, the Defense attorney may focus on his client, "Mr. and Mrs. Smith" as sympathetic. Invariably, he will down play the extent of the Plaintiff’s injuries and suffering.

As you can see, there is a lot of information that both lawyers should put into a closing argument. The lawyers must summarize witness testimony, expert testimony, medical diagnosis and jargon, all the while weaving pertinent facts into the closing argument and relaying what the hurt and injured Plaintiff is entitled to; and to do this without "losing" the jury.

Like the role of the jury, this is no small task.


The Verdict

After the Judge instructs the jury on the law that applies to the facts that the jury has heard during trial, the jury returns to the jury room; elects a foreperson to moderate discussions; discusses the evidence; and votes deciding the issues in the case.

In Florida, the jury's verdict must be agreed to by all 6 jurors. If all 6 cannot agree, the Judge declares a mistrial, and the case will be tried before another jury.

If all 6 jurors can agree on a decision, a jury verdict "form" is completed. The typical form in an auto accident case lists the first question as: Was the Defendant negligent? In other words does the jury agree as a group that the Defendant failed to use due care in the operation of his or her motor vehicle.

If the jury agrees the Defendant was wrong and answers: YES; then the second question is: Was the Plaintiff negligent? This question is asked in Florida because Florida's legislature adopted comparative negligence; that is the idea that sometimes both parties to an accident are somewhat at fault and the jury is needed to divide the fault between the Plaintiff and Defendant.

Although this "comparative fault" is found in a minority of cases, it is important the jury always award the full amount of the Plaintiff's damages even if they find the plaintiff is partially at fault because the Judge is later required by law to reduce the jury's verdict for the Plaintiff by the percentage at fault the jury finds the plaintiff may have been. For example, if the jury finds that the Plaintiff suffered $100,000.00 in damages and was 50% at fault in the accident, the Judge is required to enter judgment for the Plaintiff in the amount of $50,000. Thus the Plaintiff is doubly injured by a jury making its own reduction in the amount of the Plaintiff's damages, if the jury thinks the Plaintiff was at fault in causing the accident.

The next question is typically: Did the Plaintiff suffer a permanent injury? This is an important question under Florida's Motor Vehicle No-Fault law. If the Plaintiff does not have a permanent injury, no matter how long or how much the Plaintiff hurt after the accident, there can be no recovery for pain, suffering, mental anguish, and loss of enjoyment of life. The law does not define "permanent injury." The jury decides if the loss of range of motion, the ability to lift as much, move as well and the like after the accident is a permanent injury or not. Sometimes juries simply ask themselves: "Is the plaintiff going to be as healthy the rest of his/her life after the accident as he or she was prior to the accident?"

The next questions are the damages questions. Whether or not the Plaintiff has a permanent injury, an injured person is entitled to recover for the money he or she has spent in the past for medical bills, prescriptions, and mileage back and forth for treatment. Again it is important for the jury to award the Plaintiff the full amount of the loss as the No Fault Law requires the Judge to deduct from the verdict any bills paid by PIP. Also group health insurance, Medicare, Medicaid, some med pay auto policies require that the injured person's own insurer gets repaid from the verdict. The Plaintiff is simply a bill collector for the insurance company in regard to insurance subrogation claims.

Of course, during the closing argument, money will be discussed. However, the jury has heard about or seen bills from medical providers, perhaps the Plaintiff's income statements, health insurance payments and even automobile medical payments. However, during the closing, the Plaintiff's lawyer will put those numbers into context; meaning that the Plaintiff's lawyer will ask for his/her client to have his/her past medical expenses paid. Also, the Plaintiff's lawyer will ask for his/her client's future medical bills as well. Naturally, it seems fair that when a Plaintiff has been injured to have their medical bills paid for. There is often great divergence between the Plaintiff and Defendant when they argue about non-economic damages such as emotional distress.

An injured person may also be awarded future medical costs as shown by the evidence that are more probable than not to be spent by the injured person for his or her care in the future.

An injured person, who has lost time from work, lost a job, a promotion, or other lost wages or earning capacity because of the negligence of another driver should be awarded the amount of wages lost in the past and wages that will be lost in the future.

If the Plaintiff has a permanent injury, the jury considers the amount of money that compensates an injured person for his or her pain, suffering, inconvenience, mental anguish and loss of enjoyment of life in the past and in the future. There is no set amount for such damages as there would be for lost wages and medical bills in the past and in the future. Based on the evidence the jury should agree on an amount of money that is fair and equals the amount of pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life that the injured person has suffered and will suffer in the future.

After answering all the questions on the verdict form, the foreman signs the form and notifies the Judge's bailiff that the jury has reached a verdict. The judge will ask the jury to return to the courtroom where the verdict will be read in open court. The jury may be "polled"; that is asked individually, if the verdict that has been read is that juror's verdict.


IF WE ACCEPT YOUR CASE, we will work hard for YOU.

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