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Telling the Truth at Trial….Well, Sort of …

Preparing for trial is always the lead in to what it is all trial lawyers crave: the high emotions, the low emotions, the insane and crazy strategic gamesmanship that can be found in no other game. Litigation is like chess – only, the players are real people.

Plaintiffs are real people. Defendants, they are, well…. sort of, real people. Let me explain.

Given that it takes nearly two, three, sometimes four to five years to get the case to trial generally gives you an idea of how hard fought the case has been. In a personal injury trial situation, someone has been harmed, suffered losses and is seeking compensation for those losses, those major setbacks in their life, from the party that harmed them.

The reality is, the person that caused the harm is typically represented by an insurance defense attorney. The attorney for the insurance company and the claims representative are calling the shots. They are deciding if the case will settle, if the case will go to trial. They are playing a numbers game. Plaintiff is living his or her life. Defendants are trying to maintain their insurance policy and have to do what the insurance company tells them to do. It is a risk/reward numbers game for the defense. There is a cost benefit analysis. A rolling of the business dice. An effort to maintain a bottom line.

That is a significant fact a truth that never gets told. We have selective justice in our civil jurisprudence. Insurance lobbies are powerful and prevent jurors from hearing that there is insurance involved… though we all suspect it, it is never spoken about in a courtroom. The theory is that if jurors know there is insurance they will be more likely to apply a verdict that will make whole the plaintiff for the harms caused. If the jurors think it is coming from the pocket of the defendant, then the verdict will reflect sympathy for their fellow man and his or her bank account.

In a nationwide effort to further reduce the cost to insurance companies, medical bills – often used to evaluate how “harmed” a plaintiff was, or is – are not fully allowed to be seen by a jury. Let me explain how this has come to work in the past two years. In both CA and TX, companion cases decided near the same time, 2011, held that only the amount of medical bills actually paid by an insurance company would be presented to a jury. In other words, we all know how astronomical the cost of medical care is in the US. If jurors hear that a person claiming to be seriously injured only suffered FIVE THOUSAND ($5,000.00) DOLLARS in medical care costs, you would not assume that was very serious. What you may not hear, depending on the judge’s ruling pre-trial, is that the billed amount for medical services to the injured person was actually FIFTY THOUSAND ($50,000.00) DOLLARS. Blue Cross, Blue Shield, Aetna, Travelers, Healthnet, etc., all have agreements with the medical providers to pay set rates for various services/procedures. That reduction by contract between the insurance company and the healthcare provider/hospital, a separate agreement having nothing to do with the crash, the harms, the surgery, the pain, is the only information that will get before some juries. When that happens, the juries won’t know the actual amount billed, and more likely than not, the verdict will be anchored to the amount of bills to determine the extent of harm when deciding non-economic (pain and suffering) damages.

As I prepare for trial, I think of all the ways in which I have to word my opening, my direct examinations, my cross-examinations, my closing argument, and every other piece of evidence with insurance information on it, has to be redacted. I think about how truth in this “truth-telling” forum can only partially be told. I think about how one day, hopefully I will be preparing for a trial where I will be able to present to that jury, the WHOLE truth.

Until then, I am left to work around, strategically present my case so that the burden on the plaintiff is not so burdensomely felt. My goal: fix what can be fixed, help what can be helped, make up for what cannot be fixed or helped. I do this for the little guy, the underdog, the one fighting to make sure the bills s/he owes due to someone harming him/her don’t cost him/her his or her apartment or throw him/her out on the street, cause him/her to miss a child support payment or go so deep into debt that there is no coming out. It is a fight involving human lives. It is not about numbers and cost benefit analysis. For the plaintiff, it is about winning justice in a system that only allows the telling of half-truths. For the defendant, it is only about protecting a swollen and deeply weighted bottom line.

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