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The Most Common Juror Mistake

On Behalf of Armbruster Dripps Blotevogel LLC |

I read summaries of jury verdicts regularly. When the plaintiff “wins,” the verdict frequently seems shockingly low, and I wonder, “What went wrong?” Did the jurors misunderstand something fundamental? The answer, unfortunately, is usually “yes.”

Jurors frequently misunderstand their role; the single most common misconception among jurors that I’ve talked to is that they believed that their job was to “determine how much money the plaintiff should get in his pocket.” Any lawyer will tell you that no jury can ever do this. It’s not because jurors aren’t smart enough – quite the contrary, jurors understand very complex concepts ranging from the economic principle of present value to complex medical issues. The problem is that jurors will never receive the information necessary to make that calculation. And jurors don’t realize that the law requires the judge to make certain reductions to a verdict even when the jurors believe they’ve already made those same reductions.

Below are just two specific examples of why it can be so dangerous when juries think that they can decide “how much money the plaintiff will get.”


Considering Subrogation and Litigation Loans

Jurors may understand that health insurance has paid all or almost all of the plaintiff’s medical bills. But jurors rarely understand that the contractual principle of subrogation is included in nearly every health insurance contract, meaning a plaintiff may owe his health insurer whatever it paid for medical care out of any recovery, assuming they put the plaintiff’s attorney on notice they are asserting such a claim. A routine lumbar fusion surgery, including charges for pathology, radiology, nursing, physical therapy, anesthesiology, hospital, and medicine will easily exceed $100,000 today. That means that even if the jurors award no money for medical bills, the plaintiff still may have to re-pay the health insurer from the verdict that he received. If the plaintiff chooses not to submit medical bills into evidence or the jurors, thinking that they’ve been paid, don’t award money for medical expenses, then the health insurer gets paid from the injured plaintiff’s pain and suffering award.

Jurors also may not factor into the verdict the fact that a plaintiff whose doctor restricted him from working for a year had to borrow money just to survive and then had to go to school to learn a new career because the injuries kept him from returning to his old job. And jurors who do understand that reality may not realize that a “litigation loan” company may charge 40% – or more – for the interest rate. If a person who supported a family of four on earnings of $50,000 per year suddenly stops receiving a paycheck, the only word that can describe the situation is “desperation.” If that worker borrows $50,000 per year for the life of the lawsuit – three years from injury to jury verdict is not unusual – he will be responsible for paying back $150,000 in principle and up to $120,000 in interest. Yes, this is legal.  And this means that if the jurors give the injured worker his full back wages of $150,000, the worker is still $120,000 in the hole. That money has to come from somewhere, and “somewhere” is the worker’s pain and suffering verdict.


Considering Attorneys Fees and Trial Costs

If the jury in this plaintiff’s case tries to figure out “how much the plaintiff should get,” and they guess that the plaintiff’s lawyer has a one-third contingency contract they still don’t know how much the lawyer paid out in expenses to get the case ready for trial. On a complex case, a lawyer can easily spend $75,000-100,000 just getting the case ready for trial and even more during trial. Some of those will be due to witness fees to professionals like doctors or economists, some will be due to travel expenses, some will be due to court reporter charges for deposition transcripts, some will be due to obtaining demonstrative exhibits. All of those expenses come out of the verdict after the lawyer’s fee is taken. So, putting all of this together means that if the jurors want the plaintiff to receive $250,000 in his pocket and they award no medical expenses because they think the health insurance paid them, and they give him his full back wages of $150,000, and think that $300,000 is probably fair for pain and suffering but they increase it by a third to account for the lawyer’s fee, the total verdict is $550,000. This will under-compensate the plaintiff by about $150,000: $550,000 minus one-third for attorney’s fees=$366,300-$75,000 in expenses=$291,000 minus litigation loan interest=$171,000 minus health insurance subrogation ($100,000 reduced by one-third for the lawyer’s services under the “fund doctrine”) =$104,634 “in the plaintiff’s pocket.”

For the jurors to put the $250,000 that they thought they were putting in the plaintiff’s pocket, the verdict would have to be at least $767,500, or almost 50% more than the actual verdict.

Low verdicts usually mean that the trial lawyer hasn’t let the jury know how the system works. How do the ADB trial lawyers combat this problem? This is from the trial transcript of Charles Armbruster’s closing argument that resulted in $1,950,000 verdict:

  1. You’re going to get another instruction at the
  2. very top that’s going to say, and the Judge will
  3. instruct you, whether a party has insurance or is
  4. insured has no bearing on this case. You are not
  5. supposed to consider that.
  6. The other thing you’re not supposed to consider
  7. in addition to whether anyone is insured is whether Mike
  8. got any other sources of benefits, unemployment, work
  9. comp, things like that. Why aren’t you supposed to
  10. consider that? Because that’s the Judge’s job to deal
  11. with that.
  12. Your job when you’re deliberating is to figure
  13. out the total damages involved in this case. If there
  14. needs to be offsets or reductions, that’s the Judge’s
  15. job. Sometimes juries get stuck trying to figure out
  16. how much they want to make sure a plaintiff gets, and
  17. they end up shortchanging the plaintiff, because by the
  18. time there are reductions, he gets even less.
  19. The Judge is going to do his job at the end of
  20. this case regardless of what you do. So when you are
  21. deliberating, please focus on the total damages involved
  22. in this case.

Pohlman v. Madison Industrial, Cause No. 20-L-443, REPORT OF PROCEEDINGS

VOLUME III, p. 84.

Expecting a lawyer to explain how the system works seems like a simple idea but not every plaintiff’s attorney does it. If you’re looking for a lawyer, ask to see the trial transcripts. And always ask “show me the verdicts.


If You Believe You Have a Case, Contact an Experienced Trial Attorney Today

Not every case goes to trial. In the event it’s necessary to give you the maximum amount of compensation you deserve for your injury, you need an attorney who not only practices in personal injury law but has an extensive track record of successful verdicts in court. Contact us today for a free consultation and to learn more about the jury and trial process.

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