For the 1% of personal injury cases which go to trial, the majority of those cases are tried by a Judge with a Jury.
Insurance companies automatically file Jury Notices to accompany their Statements of Defence because they know that jurors don’t like sitting through long personal injury cases. A disengaged and disgruntled juror will be less likely to side with the Plaintiff. A Judge sitting alone is trained, well versed and PAID to listen carefully to the facts. Jurors are not trained, not well versed and certainly not well paid to sit around for weeks listening to evidence. In some cases, the cost of parking, snacks and meals will outweigh the cost of the Juror’s daily stipend. Compounding the anger of a juror is the fact that many of them are employed and have to miss time from work without getting paid themselves to engage in jury duty. Nobody wins.
Jurors want to sit in on “cool trials“. What’s a “cool trial“. Think of a high profile murder case. That would be “cool” to sit in on. Or how about a violent assault, drug trafficking charge, or something involving organized crime? Anything out of a TV or movie plot would satisfy a juror’s appetite. Unfortunately, chronic pain, fibromyalgia and long term disability disputes don’t make very interesting screen plays.
Plaintiff personal injury lawyers know this. Plaintiffs themselves often do not. It’s hard for a Plaintiff to put him or herself in the position of a Judge or Jury hearing their own case. In the Plaintiff’s own mind: What else could be more important or more interesting than sitting through a 2-4 week trial to hear all about my injuries, disability and how the insurance company screwed me?
What really goes on in a juror’s mind is “who cares about this person; and; get me outta here so I can go back to my normal daily routine.“
When Jury Trials go ahead, there are a few schools of thought on who to select, and who not to select. In your typical jury pool, there will be a few nurses, personal support workers or people who have worked or who use to have worked in the health care industry.
These people have seen it all from a health care perspective. They have seen broken limbs, surgeries, amputations, fatalities, people hanging on for dear life with tubes hanging out of their mouths.
There is a school of thought that these people may be more empathetic to people who suffer from fibromyalgia or chronic pain because they are healers/helpers by nature and they want to help.
There is another school of thought that these people are the WORST to have on a jury from the Plaintiff’s perspective because they’ve routinely seen the worst of the worst. Nurses and healthcare workers may not empathize with someone who suffers from fibromyalgia or chronic pain because they seen much much worse, and seen it on such a regular basis that they’ve become so desensitized to pain and suffering that it takes a heck of a lot to trigger their sympathy/empathy button. If these people are on a jury and they don’t sympathize/empathize with a Plaintiffs because they’ve seen much worse, then these people will be more inclined to side with the Defendant insurance company. If they agree to awarding the Plaintiff damages, those damages may likely be on the lower end of the scale on account of the juror’s experience seeing the worst of the worst injuries and suffering in a hospital setting.
This is what makes chronic pain and fibromyalgia cases so difficult. Getting the Judge and Jury to understand what the Plaintiff is going through is not an easy task. The prevailing attitude of “who cares; and get me outta here” is not easy to overcome, even at trial.
The law doesn’t work in such a way that the Plaintiff gets to take the Judge and Jury home with them, and live with them for a week or so to enable to Judge/Jury to see first hand the pain and suffering which the injured/disabled Plaintiff lives with everyday.
Our Courts work in such a way that the Plaintiff gets one shot at explaining his/her case on the stand. Their day, or in some case, two days on the stand are crucial. If that Plaintiff has an off day, or cannot properly articulate their pain, problems and disability on the stand, then it won’t wage very well for the Plaintiff at trial. One bad day can mess up years of legal work. Those are the breaks at trial. The damage of one bad day at trial for a Defendant may not be as pronounced when it comes to establishing damages, because the Plaintiff has to establish damages. All the Defendant has to do is either disprove them, or cause the Judge/Jury to question the legitimacy of those damages. These are two very different things, and I would argue that establishing damages is a much more intensive and arduous task than simply bringing those damages in to question.
Think of it as designing and building a castle. Is it easier to design, purchase the materials, and build a castle? Or is it easier to simply knock it down? The job of a Plaintiff lawyer is to design and build the castle. The stronger, higher and mightier the castle, the stronger the case. The job of the Defence lawyer is to know down the castle, either brick by brick or in one foul swoop. The smaller and less fragile the castle, the weaker the case.
When injuries aren’t as obvious as they are with chronic pain and fibromyalgia, presenting such a case to a jury can be tricky. There is nothing jumping out to the Jury which screams that the Plaintiff is injured. Keeping the jury engaged, so that the empathize and sympathize with the injured accident victim or disability claimant is crucial towards maximizing the outcome of the case on behalf of the Plaintiff. But even when the personal injury lawyer has accomplished that goal, the will of the jury remains unpredictable.