Experience Counts
Anyone seeking to hire a lawyer for contentious litigation needs to be aware of his lawyer’s actual experience in court, specifically in civil litigation cases. Why is this true? For one thing, few cases are going to trial these days; 95% settle; so there are “trial lawyers” who have not handled a trial in ten years or more. Yet a trial can be a minefield. If a lawyers says the wrong thing during trial, it can be grounds for a new trial, meaning, all that work that went into preparing for trial could be for naught.
Some lawyers don’t know any better and let things slip out of their mouths while zealously advocating their clients’ interests. What are some examples of how a lawyer can say the “wrong thing” at trial?
Reference to Insurance
Unless you are suing an insurance company for bad faith or a lack of coverage, the reference to insurance is usually not admissible and it can be grounds for a new trial. Even saying Plaintiff is “limited tort” may be grounds for a new trial.
When a jury hears that the defendant has insurance that covers his “negligence,” the jury might say, “wait, why would the Defendant exercise due care if he had insurance? Why be careful, if he’s not paying the bill? He must have been negligent.” This is a faulty conclusion that can come about by reference to insurance. Plus, this is a distraction from the central issue, which is: factually (aside from insurance), was the Defendant negligent (regardless of insurance coverage)? Likewise, Pennsylvania has something called the collateral source rule. For example, if you are hurt in a fall related injury, you might have UPMC or Highmark insurance that pays your bills, yet, you may still seek to recover those from the negligent sidewalk owner who caused the fall. Why? The defendant is not allowed to benefit from your insurance proceeds you received from a “collateral source.” Such evidence is inadmissible. That said, mentioning insurance during trial can be grounds for a new trial.
“Stand in My Client’s Shoes.”
Asking the jury to “stand in my client’s shoes for one second,” can be grounds for a mistrial. This is because, the jury is supposed to look at the evidence objectively, and specifically not stand in the particular shoes of any party.
“Send a Message.”
Also, saying to the jury, “send a message by ruling in my client’s favor,” is also improper. In Pennsylvania, cases are decided on the facts present in the case, and not to “send a message” regarding future cases or conduct, unless there is a claim for “punitive damages,” but few cases involves those.
Lawyer Opinions
Lawyers are not supposed to say their own opinions to the jury. It’s not relevant what the lawyers think. Lawyers are advocates for their clients’ interests. Of course the lawyer thinks that, in her opinion, her client should prevail, but it’s not relevant.