Bell & Pollock - Court Secrets, What They Won't Tell You In Court

Thank you to the Bell & Pollock Law Firm for compiling this list of Court Secrets. You can also link to the web page to learn more about these Court Secrets.

INSURANCE. The fact that a defendant is insured by a car insurance policy or liability insurance policy is not admissible in court. It is not usable in court and you can't even mention it in court, under most circumstances. Therefore, the following scenario exists:

  1. There is an automobile accident.

  2. A person is injured in a car/truck crash or collision.

  3. The injured person attempts to settle for his/her injuries, damages and losses with the insurance company for the at-fault party.

  4. The settlement cannot be reached and the injured person has to file a lawsuit in District Court to recover for his/her damages, injuries and losses.

  5. During the trial, neither the plaintiff's attorney, nor the plaintiff, nor anyone on plaintiff's behalf can mention or bring up the word insurance or the fact that the at-fault party is insured or has insurance.

  6. The overall point is that the jury is never told about insurance, is never told that the at-fault driver has insurance and is never told that there is an insurance company behind the at fault driver.

  7. Jurors now have the opportunity to ask questions in court. They are usually given the opportunity after the attorneys examine each witness. The most usual and prevalent question is about insurance. The questions generally are something like this:
    A. "Is there insurance in this case?"B. "Does the defendant have car insurance?"C. "Is there any insurance covering anyone in this case?"D. "What insurance does the defendant have?"

  8. There are very limited circumstances under which insurance can be mentioned.

As Bell & Pollock have stated on their radio show before, when you are a juror involved in a trial, or in trial in some other capacity, you often wonder whether or not there is "insurance" to cover the jury award, to cover the damages and to cover the amounts requested by the injured person, through their attorney. As a general rule, the word "insurance" cannot be mentioned in any capacity, in any way, in any form, during the trial or the Judge will declare a mistrial.

The insurance companies want you to basically believe that if the jury awards any money that the money is going to have to be paid personally by the Defendant. That's not true. Usually they want the jurors to feel sorry for the Defendant or engage in a mental process whereby the juror could not award money against this poor Defendant, like an 85 year old grandpa, or like a very young person. The truth is that insurance is behind most of these cases and it is relatively rare, in a personal injury case, that there is not insurance to cover all damages and losses. Sometimes what happens is that the insurance company will not offer a settlement on a fair and equitable basis. In a lot of instances, the insurance company refuses to even offer to pay the amount of the medical bills that the injured person has incurred. Therefore a trial has to be conducted in order to determine the amount of compensation that's to be awarded by the jury to the injured person. When "insurance" is not mentioned, then the "implied" thought is that the money is going to have to be paid by the Defendant who is being sued. That is not true as the insurance company pays not only for the judgment, not only for all compensatory damages ordered by the jury, but also for the attorney to represent the Defendant, and for any costs incurred in the case. In essence, the Defendant basically pays nothing out of pocket because the Defendant purchased insurance. You're just not told about insurance.

Insurance companies hire, and pay for, Defense Counsel, pay for the judgment rendered by the jury and pay for all costs associated with defending the Defendant. You are not told that the insurance company for the Defendant selects, hires and pays for the attorney representing the Defendant. The Defendant pays nothing in this regard. If a judgment is entered by the Court, on a jury verdict, the insurance company for the Defendant pays the judgment. The Defendant who is being sued pays nothing. If there are any costs involved in the case, like expert witnesses, and so called "independent" medical examination doctors (doctors who testify regularly on behalf of insurance companies) these "costs" are paid for by the insurance company. The Defendant pays for nothing. Insurance companies make all the decisions as to the amount of money that is going to be paid, offered in settlement, or not offered settlement. The insurance company makes the decision as to the selection of the attorneys, makes the decision as to whether the case will be settled or go to trial and the Defendant, who is being sued, who had a car insurance policy, makes no decisions. The Defendant is required to "cooperate" and show up for his/her deposition and in Court.

TRAFFIC TICKET. We get a lot of questions about traffic tickets. Of course, if a person is issued a traffic ticket in an accident involving injury, there are usually two different proceedings. One of the legal proceedings is a process whereby the person has to answer for the ticket itself. They have to plead guilty or not-guilty and if they plead not guilty then the matter is set for trial with the District Attorney. This process has nothing to do with an injury case. In an injury case, when an at-fault party receives a ticket, the at-fault party has to deal with the ticket itself. It is a separate proceeding from the claim for injuries. An injured person can still make their claim for injuries against the insurance company of the at-fault party. During the trial of the injury case (not the traffic ticket case) a traffic ticket is not admissible into evidence and no one can mention it. Therefore, if you are attending a trial for an injured person or if an injured person is making a claim, then the traffic ticket is not mentioned and cannot be received into evidence on a general basis. That is one of the main reasons why you never hear about traffic tickets in injury cases during the trial by the injured person against the at-fault party. Traffic citations and traffic tickets are not admissible into evidence on a general basis. There are certain exceptions to this rule, which will not be discussed here. Generally speaking, however, the traffic ticket is not admissible into evidence.

DRIVING RECORD OF THE NEGLIGENT, AT-FAULT PARTY. The driving record of the negligent, at-fault party who caused injuries in an accident is not usually admissible into evidence at trial. There are some exceptions, but suffice it to say, that if you are a juror serving on an injury case or if you are involved, in any way, in a claim by an injured victim against the at-fault party, the general rule is that the driving record of the negligent, at-fault party does not come into evidence, nor is it ever mentioned.

POLICE REPORT. Most of the police report in a trial by an injured person against the at-fault party is not admissible, nor is it mentioned. The usual argument by the defense and by the insurance company is that the police report is hearsay, not admissible and the police officer did not "observe" the accident, but is merely going off statements by other people, including independent witnesses. Suffice it to say, the police report usually does not make it into evidence and that is the reason that in a case involving an injured victim against the at-fault party, you do not normally hear about, or see, the police report. Sometimes selected portions of the police report can be admitted into evidence. Certainly the police officer can be called to the stand to testify.

SETTLEMENT OFFERS / SETTLEMENT. Parties to litigation can talk about settlement and engage in a settlement mediation or any other forms of settlement discussions and none of it will be admissible at trial. Therefore, taking the case of an injured victim suing the at-fault party, the insurance company protects the at-fault party and makes settlement offers. Those offers are never admissible in court. Therefore, the jury never hears about settlement offers. Sometimes the insurance company of the at-fault party doesn't even offer as much as the medical bills to settle the case. An example would be medical bills in the amount of $22,500.00 and the insurance company's final "take it or leave it" offer is $11,900.00. That doesn't even pay the amount of the medical bills, and in essences, forces the injured victim to file the case, prosecute the litigation and to have a jury trial involving the injured person's injuries, damages, losses, including medical expenses and bills. The insurance company then likes to call the injured victim "greedy" and portray them as a person who is only out to get money, when in truth and fact insurance companies, in some instances, do not even offer enough money to pay the medical bills, much less other damages, injuries or losses. The bottom line is the settlement offer and settlement discussions are not used at trial. You never hear of them.

EVIDENCE OF GOOD CHARACTER. Generally speaking, any evidence indicating that the injured victim is a person of "good character" is not admissible. There are obviously some exceptions to this rule, however, generally speaking, injured victims / plaintiffs cannot introduce into evidence anything about their "good character" or how good of a person they are, since that sort of evidence is generally excluded. As stated, there are some exceptions to this rule, but that's generally why you never hear about the "good character" of the injured victim.

SUBSEQUENT REPAIRS. Any time there are injuries resulting from dangerous conditions on premises, such as a huge hole in the ground which is unmarked and unprotected, such as sidewalks which were unfinished and dropped off several feet, with no warning, such as dangerous conditions in parking lots, like snow or ice, with no adequate protection, one wonders whether the landowner repaired or corrected the dangerous condition after the injury occurred. Why do you never hear about that in court? There is a rule addressing "subsequent repairs." Any time a dangerous condition is later "repaired" or "corrected" that evidence is generally not admissible to prove anything relating to the incident in question. Therefore, the landowner or other responsible person, can correct, fix and/or repair a dangerous condition after someone has been injured and those "subsequent repairs" generally are not admissible in Court.
We want you to understand why rules of evidence, statutory laws and other rules covering certain matters mandate that certain matters cannot be brought up in Court. Probably the main question usually asked by jurors, when they get their turn to ask questions, is: "is there insurance?" or "what about insurance?" or "does the Defendant have insurance?" The Judge will not let these questions be answered since none of them are admissible in trial, and if the word of insurance is brought up by the Plaintiff, most judges will consider a mistrial in the case. As discussed above, there are instances, in other matters, in which significant facts do not come into evidence and are excluded by the Court, based on the law. Hopefully this helps explain to you the various laws pertaining to evidence, admissibility of evidence and other relevant evidentiary matters. In essence, these are Court Secrets and what they don't tell you in Court.

No comments: