OPEN THE COURTROOM! A Proposal to Make Civil Trials More Fair and Transparent
A civil jury trial under current Minnesota rules is often an exercise in hiding things from the jury. The parties are forbidden from disclosing that the defendant has liability insurance that is paying the costs of defense, including attorney fees, court costs, and expert fees, and of course would pay the amount of any jury verdict. Instead, everyone must pretend that the defendant personally shoulders all of these expenses.
The jury is prevented from knowing that the medical expenses or wage losses were paid by another insurer. Instead, again, the lawyers act out the fiction that the bills are still outstanding. The plaintiff cannot claim hardship because of the expenses for fear of “opening the door” to impeachment – a cross-examination designed to show that they are lying.
Other rules frustrate fairness and transparency. Nobody can mention whether the injured person was wearing a seatbelt at the time of the motor vehicle crash. Not the defendant, to argue that the plaintiff bears some responsibility for the injuries caused by their own violation of the rules; not the plaintiff, to argue that the injuries were actually caused by the restraint system itself.
Lawyers cannot ask the jury to place themselves in the position of the parties. Do we imagine that they aren’t doing that anyway, from a feeling of empathy?
Here’s my proposal (disclaimer: this is my idea, and does not reflect the opinions of my partners or law firm.):
- Allow the plaintiff to directly sue the liability insurer. If the suit is against the insurer only, and not the alleged tortfeasor, then damages would be limited to the amount of liability coverage.
- Disclose the coverage limits, as above.
- Disclose any entities which paid benefits that are part of the claimed damages, such as health insurance, disability benefits, or workers compensation benefits. This would be whether or not the entity is considered a “collateral source”, or whether there is a subrogation claim. For example, if Blue Cross paid the medical bills and claims reimbursement, tell that to the jury so they know who is receiving the award.
- Repeal the seat belt “gag rule.” Allow either side to introduce medical evidence on the effect of wearing, or not wearing, the belt on the claimed injuries.
- Allow the lawyers to argue the “golden rule.” In other words, talk to the jury about how their verdict may affect the parties in terms they understand – how they would feel in the party’s position. Instead of blindly pretending they aren’t doing that anyway.
- Make the jury instructions explicit in terms of how each answer on the verdict form will actually affect the case, and allow the lawyers to make those arguments. Juries often render verdicts that do not reflect their actual desires, because current rules prevent the judge and attorneys from giving full and clear explanations. For example, in multi-party litigation, tell the jurors what effect their apportionment of fault will have, such as non-aggregation of fault among defendants.
This may just be a start. The goal is to open the courtroom and modernize the trial so that the people making the important decisions – the jury – have all the knowledge they need to be fair and just.