The Disappearance of the Jury Trial- (Part One)

Are jury trials in personal injury, medical malpractice, and recalled prescription drug and medical device cases in Florida nearly extinct? Over the next several posts we will examine the reasons for the nearly-extinct jury trial. Our first post starts with pre-suit settlement strategy.

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Many people, including me, an experienced civil trial lawyer in Miami, somehow believe that if they were ever hurt by a person or product, they would have the right to obtain justice through the law by presenting their case to a jury of their peers. A jury trial, I thought and hoped, would always be available to me and my clients to right a wrong, and to force accountability onto the shoulders of someone or something trying to evade their responsibility for harming me or my clients, by resolving the dispute in a civilized manner.

I went to law school in the late 1980s. Admittedly my exposure to the law before I started studying it was through movies such as The Verdict and late afternoon reruns of Perry Mason and Matlock. I did not really know how a jury trial worked and–but for one brilliant young prosecutor named Scott F. Kotler, who volunteered to coach me during our mock trial competitions in law school, and who has since become my dear friend and is now a top criminal defense lawyer in Miami–not one of my law professors had probably ever seen a jury in their lives.

Thumbnail image for kotler.jpgAs my law career began, I dreamed of being a trial lawyer, which I had thought to be the highest calling of my new profession. I relished speaking on behalf of clients I thought had been wronged and literally could not speak for themselves. In fact, I have rarely tried a case where my client speaks English. But something significant is happening to jury trials–they are slowly disappearing. For one thing, the amount of time and money it takes to process even the simplest slip and fall case through Florida’s court system is staggering.

HOW LONG DOES IT TAKE TO GET TO TRIAL?

For example, imagine a client falls down at a Publix or Winn Dixie, because of a wet floor caused by a leaking refrigerator, and breaks a wrist. I imagine and hope that the injured person would not be calling a lawyer the same day, but rather would wait a few days to recover from the fracture. By the time a lawyer is retained, another week or two could pass before medical records are obtained and contact is made with Publix. It would be ludicrous for that attorney simply to file the case before trying to resolve it for the client. But for how much? It should take several months to see how the fracture heals, if surgery is required, and if so, how much time from work or school will be missed? All of these issues have to be ascertained to evaluate the claim. Moreover, it takes a minimum of several months to get a reasonable idea of the long-term prognosis for the typical fracture.

Filing a lawsuit for a slip and fall case in Orlando is significantly different than suing for a traffic accident in Miami because there is no requirement to prove that the claimant has been permanently injured to be entitled to compensation for pain and suffering. In other words, simply falling and being hurt is enough to allow you to ask a jury for money for the pain and suffering of the fall (assuming the fall is due at least in part to the negligence of the defendant); by contrast, in a car accident only those who have received a permanent injury caused by the accident are entitled to money for their pain and suffering.

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But since a typical slip and fall at a Publix case cost at least $10,000 excluding attorney’s fees to take to a jury in South Florida, the case itself would need to be worth much more than that to justify the financial investment. In addition, the Florida Bar-approved contingency-fee contract escalates the attorney’s fees once a lawsuit is filed from 33% to 40%, which can often end up making the lawyer more money but netting the client less. That is why it often does not make sense for a lawyer to file a lawsuit for a slip and fall against the grocery store unless the injury was significant enough to justify the expense and time.

In our example of the fractured wrist, assuming that it heals without complication, most personal injury attorneys should and would try to resolve that case with the defendant before filing a lawsuit because it would be faster and cheaper.

Assuming that the lawyer provides all of the medical records and documentation to the store’s insurance adjusters, an offer can usually be expected within six months of the fall. The amount of the offer and how reasonable it is varies depending on a number of factors. Such offers are usually heavily discounted from the “full value” of the case because the insurance industry knows and understands that the lower offer provides three very valuable incentives to the claimant:

1. Certainty–By accepting the offer pre-trial, the claimant knows precisely how much compensation to anticipate and when to expect to receive the money. In spite of what legal pundits and soothsayers believe, jury verdicts are virtually unpredictable.

2. Savings–Both the attorney’s fees and case costs are significantly less in pre-suit settlements. We have conducted some significant slip and fall cases that have settled without incurring more than a few dollars for postage. In fact, we resolved a case for $100,000 last week–for a Miami woman who was injured moving into her apartment–without incurring any cost at all.

3. Time–The Florida court system is overburdened and understaffed. It could take years before a case is set for trial, then a week or two for the trial, and then another two years before the appeal is heard.

Knowing this, the personal injury and medical malpractice liability insurance industry has absolutely no incentive to pay the full value of the claim. In fact, they often will offer only a fraction with the hopes that the lawyer/client accepts the pittance or decides to proceed through litigation. That way the insurance company can keep the money it would have invested and make more money. Over time that strategy translates to paying out less if and when the lawyer/client gives up the fight (which often happens) two or three years down the road before a jury is ever sworn in.

The complex scenarios above suggest only the tip of the iceberg. In our next post we will examine the increasing distrust both the legislature and our Supreme Court seem to share for our jury system.

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