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Trial: The Good The Bad and the Ugly

By Paul Hogan

At the end of a book I’m reading the author tells the story of how 20 years before, as a young man he got into a bar fight. His opponent broke the glass pitcher against his face cutting him deeply and causing the blood to flow. He needed immediate medical attention to stop the bleeding. Afterwards his parents insisted on filing a lawsuit due to their feeling of not only the seriousness of his injury but the use of the glass pitcher as a weapon.

Five years later there was a $16,000 settlement for which his lawyer got one third. The point of his story was not the money or lack of it but the emotional impact, the frustration, and the resentment he carried inside for years.

His story got me thinking (which sometimes can be a dangerous thing!) What if you were called for jury duty on this case? Would you be eagerly and willing to take time out of your life to serve? Would you consider it a part of your citizenship duty? Would you resent being asked to serve? Would you try to get out of it?

Would you hold it against the victim for pursuing a claim for his injuries and asking you to decide who’s at fault. Asking you to decide what percentage of fault do you assess to each of the fighters (with the total equaling 100%)? What are the victims’ money damages if you decided the perpetrator who use the pitcher as a weapon was more than 51% at fault?

When I have picked juries or asked people to imagine that they were on a jury I give them a set of facts and ask them to make similar decisions. I’ve had some of them say, “Well, we will pay the medical bills only, no pain and suffering.” Some say, “No punitive damages,” and others say, “I think it’s fair for someone to receive the money for their medical bills and money for pain and suffering, the inconvenience and hassle of taking time out of their life to deal with an issue that was not their fault at all,” or that “The other party was more at fault than they were.”

For my entire legal career, I’ve always identified with and represented injured people. People injured by someone making a mistake; or lack of thinking; or taking unreasonable risks; or downright stupidity. All by persons committing acts that caused injury and harm. Most of the time the injury and harm happen to people who were innocently going about their life and are hurt through no fault of their own.

I personally think in this case the author was lucky to get any settlement as this would be a hard case to take to trial. Bad facts include: drinking and a bar fight and participants with escalating emotions after drinking. I think a jury could easily decide (because they weren’t there) that there are two sides of the story as to who started the fight, who said what, who was the aggressor, and who was defending themselves. They easily might say 50% fault on each party. The result would be that the plaintiff (the victim) would get nothing. Or if they found that the defendant (the perpetrator) was 51% at fault than the victim would get 51% of his damages. For example, if he had $30,000 in medical expense that would be reduced by the 49% jury found the plaintiff at fault and he would only get 51% of $30,000 OR $15,300. As you can see there are big risks going to trial.

After all this analysis I’ve heard some people say it’s a “big game” with rules set and played by lawyers. As the attorney for innocent injured victims I always want to get as much money as possible for them. Cynically some would say sure you do because you get one third and you weren’t even the one who got hurt. Yes, I do get one third fee for spending money up front and taking the risk of losing that money and the value of the hours and hours spent on a case if there is no settlement. For me, sometimes, it’s not just the settlement amount, but it is making a recovery, of making an insurance company pay.

One could ask, “What about justice?” I once had a judge ask me in front of a jury if I wouldn’t agree that a trial was a search for the truth. Of course, I was in front of a jury I had to respond “yes” but inside I’m saying my side is the truth and I want to win! And another side to “the truth” is a sign on a judge’s chambers wall next to the door leading to the courtroom: “Sometimes the truth has to be dragged kicking and screaming into the courtroom.”

What if we did not have trials by jury?  Would we accept professional paid jurors who did this for a living, 40 hours a week, 50 weeks a year, year in year out? Would you want that type of juror hearing your claims? Would those jurors grow tired, cynical? Could they be bought off? What if we revert to trial by combat – the biggest, strongest (or the richest who hires the biggest and strongest) combatant wins or even revert further to an eye for an eye – an everlasting circle of vengeance and violence. You hit me, I hit you, you hit my brother, on it goes – Hatfield and McCoy equals violence and mayhem.

I had a friend, a judge, now deceased, who guided and inspired me. At his funeral another friend described him as eternally optimistic. Even when he was sentencing someone to prison he tried to say something positive to them.  I say to you I’m glad you don’t have to make the hard decisions in a case like the one described above.