What Happens at Trial
The Legal Process a Jury Trial Goes Through in an Injury Case
Many of our clients have never been to trial or in a court room before, and want to know why or whether certain things happen at jury trials. You may wonder:
- Are the witnesses (or the lawyers) lying to the Jury?
- How are civil injury trials different from criminal cases?
- Why isn’t anyone allowed to talk about insurance in my trial?
- If the Jury awards me a verdict, who is going to pay it?
- Who is paying the defense lawyer?
Atlanta Legal System – The answers to these questions and many others are explained in this look behind the scenes of a Georgia jury trial.
The Millar Law Firm is selective in the cases and clients we accept. We never accept cases from people who are not actually injured and we never encourage our clients to have medical care that isn’t necessary.
What Happens at Trial
The burden of proof in a civil injury trial is “preponderance of the evidence”, which is a much lower standard that the standard in a criminal trial, which is “proof beyond reasonable doubt.” In a civil injury trial the injured person need only prove that it is “more likely than not” that the Defendant (the at-fault person) was negligent or that he or she caused an injury. This means that even if Jurors are uncertain, but leaning – even slightly — in favor of the injured Plaintiff – the Plaintiff wins.
Most likely, although not in every case, the defense lawyer is being paid by a large insurance company. Automobile, truck, and motorcycle insurance policies pay for the insurance defense lawyer and the cost of defense. The Insurance Company will pay the Verdict awarded by the jury, except in very unusual circumstances.
The vast majority of these cases are defended by insurance company lawyers. Most large and small businesses and homes are covered by insurance policies that pay for dog bite claims, slip and fall claims, and negligent injury claims. In such cases, the Verdict awarded by the Jury will be paid by the insurance company.
In most Georgia cases, the injury victim is required to file suit against the person (or company) who injured them instead of the insurance company. However, because insurance is required on all cars in Georgia, an insurance company defends the person sued and pays the Jury’s verdict up to the amount of insurance coverage.
Sorry. Most likely that did not happen. Many of our clients have a story of a “friend of a friend” or a relative who sued an insurance company directly, but this is highly unlikely in a Civil Injury case. Although there are exceptions, Georgia law requires almost all of these cases to be brought against the at-fault person individually – but this still means that the case will usually be defended and paid by the insurance company.
Unfortunately, yes. If you were injured by a nice (and sympathetic) person who was negligent, and a lawsuit is needed, Georgia law requires you to file suit against the person individually, instead of against their insurance company. However, person who is being sued is probably not going to pay any of the Jury Verdict. In most motor-vehicle or premises liability cases, the insurance company will pay 100% of the Jury’s Verdict up to the amount of insurance coverage.
This is possible, but not very likely. Automobile, homeowners, or business insurance will most likely pay any Verdict the Jury awards to you. Additionally, retirement funds are usually entitled to special protection, meaning that they cannot be seized to collect a verdict.
The Georgia Rules of Evidence do not allow the participants in most Civil Injury cases to discuss any insurance coverage, such as car, truck, motorcycle, health, business, workers compensation, or other types of insurance. Many people find this very frustrating, but it is the law of Georgia.
Probably not. Although News Talk Shows, Insurance Company commercials and Politicians have done a great job of convincing some people that all or most lawsuits are frivolous, this is a myth. In reality, lawsuits are screened by the Judge. Almost all frivolous cases are thrown out of court long before they go in front of a Jury. Most Jurors will quickly figure out that your case is legitimate and will treat your case fairly.
Lawsuits are very expensive. Our firm, like most lawyers, cannot afford to accept weak or frivolous cases, let alone take these cases to trial. Today’s Jurors are very smart and not easily fooled. Any lawyer who tries to present false evidence, tries to invent a case with un-necessary medical care, or urges a client to lie risks losing a lot of money when the Jury rejects the case. A lawyer can also lose his license or be severely punished by the Court for lying, asking his or her client to lie, or making up evidence.
It takes the average lawyer and law firm between 100-500 hours of time and thousands of dollars in court costs to prepare for a trial. The entire process often takes between 1 and 2 years – even a simple fender-bender case. With legal and administrative time costing hundreds of dollars an hour, the lawyer’s expense for even a simple Jury trial begins around $15,000.00 and runs into the hundreds of thousands of dollars.
The answer is the contingency fee. A law firm for the injured person agrees to provide all of the attorney and legal staff time and resources without up-front payment, often for years at a time. This is big risk for the lawyers and means fronting thousands of dollars of court costs until the case ends. A lawyer hopes to win a Verdict and be paid a fee and recover the court costs. A lawyer has to eat, support a family, and pay the legal staff. Trying to make a living by making-up evidence or filing weak claims and trying to “trick” Jurors would spell financial disaster. The reality is that injury lawyers screen injury cases very carefully and do not handle frivolous claims.
Our system is designed to pay money as compensation for injuries. Jurors have a duty to be honest when questioned during jury selection. Before most trials begin, we are allowed to ask potential Jurors if they do not believe that they can or should award money to an injured person. Any Juror who feels this way must be honest, and in Georgia may be excused from the Jury duty if they honestly admit a bias against awarding money. When a Juror is not fair and honest, the trial is not fair.
Maybe not. Live medical testimony is incredibly expensive! But medical testimony CAN be (and usually is) read to the Jury. Doctors, especially experts like Surgeons have to be paid to appear live in Court. They charge $3,000-$5,000 to testify in Court. Many of our clients cannot afford this charge, and unless the case is worth hundreds of thousands or millions of dollars, we may read a report or transcript to the Jury instead of calling the doctor as a “live” witness because our client ends up repaying this cost from the verdict. Expensive testimony can eat-up an entire verdict.
Georgia law allows an injured person to read a special report from the doctor called a “Medical Narrative,“ to the Jury instead of paying for the doctor as a witness. A medical narrative can only be read after the Court has pre-approved this Report. The medical narrative is usually written as a letter from a doctor to a lawyer and is considered equal to live testimony.
In most instances, your Medical Records are not allowed by the Georgia Rules of Evidence to be given to the Jury. But, you can be questioned about what is in your records by lawyers for the Insurance Company. The insurance defense lawyers will have carefully gone through your records and will ask about anything he or she feels might call your injury into question.
The Insurance company lawyers may certainly try to convince Jurors that you were not badly hurt if you did not go to the emergency room. This is a common defense strategy. We believe that most Jurors understand that many people don’t go straight to the emergency room or to the doctor because they cannot afford the high cost of medical care. Others don’t go because they don’t like doctors or hospitals and are hoping that they will feel better in a day or two. Still others do not hurt badly at the scene of an accident. It is not uncommon for accident victims to say they are “fine” at the scene of the accident (no one likes a complainer), only to feel much worse hours or days later.
Fair or not, Georgia law does not allow a person to tell Jurors that she could not afford medical care, even though from our experience this is the most common reason that clients do not see a doctor or go to the hospital right away.
We recommend that all of our clients follow their Doctor’s advice. Unfortunately, some do not. People miss their doctor’s visits for a variety of reasons such as inability to afford medical care, taking care of children, fear of losing a job, lack of transportation because a car was damaged in the accident, and for many other reasons. The Insurance defense lawyer may try to point out missed medical visits. But, a few missed visits does not prove you were not injured any more than delaying a trip to the mechanic means your car is not broken.
No. It is not ethical for lawyers to direct or influence a client’s medical care. Lawyers and Doctors have a lot riding on their professional reputation. At Millar & Mixon, LLC, all of the medical evidence that our firm uses and relies upon is totally and 100% independent. This is why Millar & Mixon, LLC is NOT affiliated with any medical practice.
No. Millar & Mixon, LLC does not accept cases from people who are not injured. This is wrong, and we also know that Jurors reject the cases of people who are simply looking for an undeserved pay-day. We will never refer a client to a doctor to inflate a claim or to falsely claim that someone is hurt.
No. Some of our clients realize they need a lawyer right away. It is vital that the investigation of a case begins as soon as possible. Sometimes this means that our clients have not yet been to the doctor or to the hospital. Millar & Mixon, LLC never tells anyone who is not hurt to seek medical attention.
You and your doctors will be questioned by the insurance defense lawyers at or in a deposition before trial. If there were ever any evidence that a lawyer tried to influence the medical care and treatment, the defense lawyers will certainly point this out. Millar & Mixon, LLC does not direct client medical care or encourage our clients to have un-necessary medical treatment.
Do Jurors sometimes rule for one side or another because of something unrelated to the case, such as a past criminal problem or a feeling that I am a bad parent?
Yes, sadly this occasionally happens. Jurors are usually instructed by the Judge not to decide a case based upon sympathy or judgmental feelings. It is improper in Georgia for Jurors to return a verdict on anything other than the evidence in the case. When a Juror feel that an injury victim does not measure up to their own personal standards of clean-living, or feels sorry for the defense, the Juror must set aside those feelings and base the size of the Verdict on the harms and losses caused to the victim. This must be true in both small and very large cases.
What if I don’t still “look” injured by the time of Trial, will the Jury believe I was/am really hurt?
We believe so. Millar & Mixon, LLC does not accept cases from people who are only pretending to be hurt. Our cases are carefully screened, and we will do our best to support your claim with the proper medical evidence at Trial. We decline at least ten cases for every one case we accept. Insurance companies sometimes refuse to settle a case because they know that forcing a victim to wait for Jury Trial can take one or two years (or longer), knowing that the victim may no longer “look” injured. This delay tactic is most common when the injury victim was healthy prior to the accident, but now suffers from chronic pain that cannot be “seen” by the Jury.
Nobody wants to hand money to someone who does not “deserve” it, even when the money is coming from an insurance company. But, our civil justice system is a “you break it” — “you bought it” system. The defense cannot make your injuries or pain magically go away, so our Founding Fathers agreed that money must serve as payment for pain and injury. This means that the amount of money must be equivalent to the harm caused. Most Jurors are caring and compassionate people who understand this concept.
Imagine an egg carton filled with eggs being dropped. The carton probably does not get damaged much. Inside the carton some of the eggs are totally fine, some are cracked, and some are seriously broken. The force of impact broke the eggs inside, but left the carton intact. Today’s cars are well-built. People riding in vehicles are similar to the eggs in the carton and are often seriously hurt without extensive damage to the outside of the car.
Probably because it is VERY expensive. Experts who can testify about the force of impact on the human body are known as bio-mechanical engineers. A bio-mechanical engineer may also need to be assisted by an accident reconstruction expert. The investigation and testimony can run tens of thousands of dollars.
Insurance companies know that unless the case is very large the injured person may not be able to afford to use experts. But, while the insurance company can afford these experts, most likely the insurance company will NOT produce a defense expert. Why not? Because the insurance defense lawyers know that their experts may admit that people are seriously injured every day in exactly the same way that you were hurt.
Sometimes we do use mechanics and auto-body repairmen as witnesses. But, most often the testimony of the victim and witnesses (and photographs) are all the evidence that is needed to prove that a car was damaged in a crash. The fact that the mechanic or body-man did not testify does not prove that a car was not damaged.
In a Georgia injury case, Police officers may only testify about what they saw and what was said to them. If the police officer did not witness the accident, he or she may not be able to say anything valuable to the Jury and may not testify. Generally speaking, a police officer who did not witness an accident is not allowed to give his or opinion about who caused the crash. Millar & Mixon, LLC believes that police officers time is very valuable and the officer should not be called unless there is a good reason to do so.
Believe it or not, the Georgia Rules of Evidence do not allow the police officer to give an opinion about who was at fault for causing an accident unless the officer actually saw the accident. Just because the injured person did not ask who caused the accident, does not mean they are afraid of the answer.
Now that camera phones are everywhere, many Jurors expect to see photos from the accident scene. Unfortunately, however, many clients are injured or dazed from having just been in an accident or having been injured. Often the location of a traffic accident is chaotic or along a busy highway or intersection. People forget to take photos. The lack of photos from the scene does not mean your vehicle was already damaged.
It is actually very difficult for you or your lawyer to lie or exaggerate in Court and get away with it. Before Trial begins, almost everything that will be said or shown to Jurors has been recorded and said at an earlier time in front of a court reporter. If you or your lawyer lie about something, the Insurance Defense lawyer and the Court usually knows about it instantly. The Defense will point out the lie to the Jury. Contrary to popular belief, the vast majority of injury clients and lawyers do not lie in Court and would be caught if they did.
No. This is another myth. Most personal injury lawyers are highly ethical and do not lie to Judges and Juries. But, we are aware of this reputation which has been spread in movies, press-releases and by politicians, who all see injury lawyers as an easy target. Lawyers have families and children just like everyone else, and like any other wife, husband or parent, we want our family to be proud of what we do. We certainly are. To us, there is nothing more rewarding than representing someone who has been negligently injured at trial and helping them receive a fair and honorable verdict.