Common Myths


Seattle Personal Injury Attorney | Juror Myths

Our Seattle Personal Injury Attorney know that people adhere to a variety of myths and misconceptions about personal injury claims. Some of those people serve on juries. Here on some common examples of juror myths and misconceptions.

“We hear everything. So if we do not hear about it, it must be true/untrue.”

Wrong.

There are many examples of things juries never hear. Here is a partial list. The subject could (and does) fill volumes.

  • Juries never hear about settlement negotiations, so it is wrong to assume the case is in court because either side is greedy or unreasonable.1
  • By law the injured party is not liable for failure to wear a seat belt, and the defense can not introduce evidence of a failure to wear the seat belt. So, it is wrong to assume the injured party was not wearing a seat belt. Even if they were not, by law it is wrong to blame them or reduce their verdict.
  • Juries never hear whether or not either side has insurance. 2

 

“Isn’t this what insurance is for. Shouldn’t court cases be about criminal and other more important matters?”

Unfortunately, some insurance companies as a matter of business strategy simply low-ball claims categorically. But don’t just take our word for it:

“I ripped off a lot of people and I feel bad about that….My goal at the time was to save [the insurance company] money, not settle claims for what the case was worth.”

– a former insurance adjuster for a major insurance company as quoted in the Wall Street Journal

Sometimes parties just can not resolve a case out of court, and with insurance company claims practices such as this, it is little wonder. If the injured party can not get a fair and reasonable offer out of court, the only recourse is a lawsuit. That is what the courthouse is for – to resolve disputes the parties can not resolve.

“The injured party’s damages, or some of them, were probably covered by insurance. By asking for (medical bills/wages/fill-in-the-blank) the injured party is double dipping and wasting everyone’s time. Right?”

Wrong.

Even if some of the injured party’s damages, such as medical bills, were paid by insurance the injured party has to pay back their own insurance company. That’s right. It is well settled law that

  • if you are injured, and
  • it is someone else’s fault, and
  • you receive insurance, worker’s comp, Medicare, and/or other benefits for bills related to the injury, and
  • you collect from the at fault party
  • then you are legally required to pay back for all benefits received that were related to the injury

If you were not injured as a result of someone else’s fault, or never collect from them, that is a different matter. But, if you are injured and receive benefits as a result, you must reimburse for those benefits if you recover on a claim against the at-fault party. It is called subrogation. It applies in almost any scenario and it is not a new law. 3

“The lawyers get all the money anyway.”

By both statute and rules of ethics a lawyer’s fees must be reasonable. Attorneys can be disciplined for charging unreasonable fees, including suspension or disbarment. 4

“There should be laws against frivolous lawsuits.”

Yes, and fortunately there are and have been for a long time.

For decades Washington and federal court rules have banned attorneys from making frivolous claims and defenses.

Filing a frivolous lawsuit violates Washington state statutes.

Also, formal ethics rules make it unethical for attorneys to file frivolous lawsuits. Washington attorneys are subject to formal discipline for violation of this rule, and violations have resulted in suspension or disbarment.5

“I do not want to hurt the defendant financially.”

Very likely the defendant has adequate insurance. If not, it is very unlikely the case would ever be litigated.

However, by law the decision about whether the defendant was at fault and if so what damages the injured party suffered is not to be based on the financial situation of the defendant. It is not relevant legally and it is an improper basis for a legal decision.

The jury never learns the defendant’s insurance coverage or financial situation. But, again, the defendant almost certainly has insurance and/or other assets or the case would almost certainly have never been brought in the first place.

“The injured party can come back and ask for more later.”

Wrong.

In some cases the injured party presents evidence of future medical and/or other care. The defense will almost certainly dispute that this is necessary and/or the amount. Some jurors assume that if the injured party really has these needs in the future, they can “come back” and ask for more.

That is a bad assumption. Once the case is litigated that is it. The injured party will never have recourse again to ask for anything more.

Speak with a Seattle Personal Injury Attorney

Contact our Seattle Personal Injury Attorney today by calling 206-8018-1188.

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1 ER 408 provides: “Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.”

2 ER 411 generally prohibits the introduction of evidence that a person did or did not possess liability insurance as proof that the person acted negligently or otherwise wrongfully. See, e.g., Goodwin v. Bacon, 127 Wn.2d 50, 55, 896 P.2d 673 (1995) (noting that, in general, evidence regarding availability of insurance is inadmissible on the issue of negligence under ER 411); Todd v. Harr, Inc., 69 Wn.2d 166, 168, 417 P.2d 945 (1966) (holding that whether or not a personal injury defendant carries liability insurance is immaterial); Kappelman v. Lutz, 141 Wn. App. 580, 590, 170 P.3d 1189 (2007) (“[T]he fact that a defendant in a personal injury case carries liability insurance is not material to the questions of negligence and damages.”), aff’d, 167 Wn.2d 1, 217 P.3d 286 (2009); Lopez-Stayer v. Pitts, 122 Wn. App. 45, 51 n.5, 93 P.3d 904 (2004) (“ER 411 restricts evidence of a defendant’s insurance coverage or the lack of such coverage as proof of negligence or other wrongdoing.”).

3 PIP/Auto Insurance. See, for example, Hamm v. State Farm Mut. Auto. Ins. Co., 151 Wn.2d 303(2004). “If the insured subsequently recovers the total amount of her damages from another source (the tortfeasor, her UIM carrier, or both), the PIP coverage becomes redundant. Therefore, when the insured receives full recovery, the PIP carrier may seek reimbursement from its insured for the PIP benefits it previously paid.” Hamm at 309.

Medicare. See generally, Wilson v. State, 142 Wn.2d 40, 10 P.3d 1061 (2000), cert. denied 532 U.S. 1020 (2001).

DSHS/Molina/Medicaid. See RCW 43.20B.050; RCW 43.20B.060.

Employer provided health insurance. See “Equitable Relief Claims Under ERISA Section 502(a)(3)”, Benefits Law Journal (Spring 2007); Harmon, “Settling Personal Injury Claims After Sereboff v. Mid-Atlantic“, The South Carolina Lawyer (2006); Sereboff v. Mid Atl. Med. Servs., 547 U.S. 356 (U.S. 2006) .

4 See RCW 4.24.005; RPC 1.5(a); Discipline of Burtch,162 Wn.2d 873(2008);In Re Disciplinary Proceeding Against Scannell, 169 Wn.2d 723 (2010); In re Discipline of Preszler, 169 Wn.2d 1(2009); In re Discipline of Brothers, 149 Wn.2d 575(2003); In re Discipline of VanDerBeek, 153 Wn.2d 64 (2004).

5 Frivolous claims and defenses. CR 11; RCW4.84.185; Zink v. City of Mesa, 137 Wn. App. 271(2007); Reid v. Dalton,124 Wn. App. 113, (2004);Bryant v. Joseph Tree, Inc. 119 Wn.2d 210, P.2d 1099 (1992).

Frivolous appeals.RAP 18.9(a) ; Fid. Mortgage Corp. v. Seattle Times Co., 131 Wn. App. 462 (2005); Andrus v. Dep’t of Transp., 128 Wn. App. 895 (2005).