5 Things We Want To Tell the Jury...But Can't!

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Please rise. Court is now in session.

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I strenuously object. A legal podcast brought to you by the Pittsburgh law from a Flaherty Fardo is now in session.

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All those seeking information about the law and legal matters affecting the people of Pittsburgh and the Commonwealth of Pennsylvania, half-baked opinions, and a dose of self-indulgence are invited to attend and participate.

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I want the truth! You can't handle the truth!

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The defense strenuously objects.

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You would!

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Call the first witness.

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Hello, Noah. A quick one today, I hope. How are you?

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Good, William. I'm good. How are you?

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Well, I mean, I just started off the podcast with the promise in life I most regularly break. So other than that, doing pretty well, doing pretty well.

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Our goal here today, what we would like to discuss, just because I've got this thing that, you know, you're itching to say and tell the world.

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Jerry, Joe DeVola.

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I have a hair on my tongue.

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Can't get it off.

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And what I mean in this case is specifically what we're going to do today is list our personal top five things we wish we could tell jurors but can't.

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You know, it's a list of five. We're going to count them down and we're going to try to move relatively briskly by our admittedly limited standards in this regard.

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There are a lot of rules. There are a lot of a lot of rules on what you can and cannot say to a jury.

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Yeah, it's almost like the word law and the word rule often function in similar ways.

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And it turns out there are indeed a lot of a lot of rules in the law.

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I'm sorry. I keep forgetting you were sick today. They taught law at law school.

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Mike, the podcast producer here. It sounds a lot like that game. What's the name of that game where you're trying to describe something to someone but you have a list of words that you cannot use the rates.

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I can't use words at all in charades but taboo I think is the game you're thinking of.

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Place where single guys keep furry meat refrigerator.

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The game is taboo. How would you get your team to guess the secret word without using the five best clues.

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Very frustrating, very difficult game. It is a game of taboo. You're absolutely right.

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Or you know what was the game show. Ten thousand and then twenty five thousand and then hundred thousand dollar pyramid inflation really hit that show hard.

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I know I always think about the five thousand and laugh like that was all the money in the world watching that show when we were young.

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Twenty five thousand dollars. I remember watching that. You can't get a car.

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Watch like press your luck and the person leaves the show and their grand prize is like twenty two hundred dollars which you know was you know 1984.

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That was good money and people would get angry and turn your game show off if that's what you were rewarding today.

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Anyway that diversion aside what I'd like to do is just get into the list.

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So number five of the top five things that Noah and I anyway wish we could tell jurors but can't is attorneys fees and costs have to come out of any verdict.

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Now there are other kinds of cases business litigation contracts.

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There are in fact cases where there are ways to collect attorneys fees but in the world of personal injury medical malpractice in almost all of those kinds of cases the jury if they're awarding a verdict they're awarding you know two million dollars to some injured plaintiff in their head.

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They're awarding that plaintiff that plaintiff gets to walk out of there with two million dollars.

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That's nowhere near the case not even close but so generally speaking you know the attorneys fees have to come out of that share that the default there is you know 40 percent of that some is compensating the attorney for the hundreds of hours or more of time that went into getting that case to trial.

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But on top of the attorneys fees that have to come out of that there's there are often liens owed to medical care providers right if my health insurance company you know had to pay a hundred thousand dollars for my corrective surgery after the car accident or the negligence that came before.

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I have to repay well I don't personally but out of the settlement some we have to repay the medical insurance provider for what they paid that was caused by the injuries or by the accident or by whatever the events are can I object please I may even strenuously object I mean we're looking at the top five things that you do that you wish you could say to a jury that you can't.

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I'm not convinced attorney fees and costs would be on there because I'm thinking about the last episode where we talked about the forty three million dollar verdict for the Eagles player.

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I don't get benefit of the lawyers telling that jury you know if you award forty three million we're going to get seventeen million that seventeen million.

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Is coming out of there and I think there's more risk than reward in addressing the attorney fees and cost I think enough jurors will know that they know lawyers don't work for free so I'm not sure that I agree that this is on my list you can put it on your list.

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And we're different in that regard but I'm not sure this makes my top five.

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Well look there's a reason it's number five on the list and you would have to make a decision case by case or situation by situation as far as whether you you would or how how completely you would say versus hint at this sort of thing to a jury in this one in particular maybe more than the others.

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This is something that I wish the jurors would know whether or not in the particular practice of one case it would make sense to come out of my mouth because you might look greedy.

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Telling the telling the jury the jury how much it is that the attorneys gonna take out of that that might make more than make might make them want to work like I think it looks great I wish the jurors knew that when I award you a million dollars you're not walking out of there with anything resembling a million dollars and I don't think they all know that.

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I wish that the jury verdict form which is the piece of paper put in front of the jury that says how much do you award would have a little parentheses that says this will also include attorney fees and costs or attorney fees and cost will be taking some maybe that's a remedy but it looks greedy even then.

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We are not allowed to tell the jury anything about attorney fees or cost we can we can and.

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And I mean people don't know right if you're at one of these trials even if it's a relatively short but but but not super short trial one of these trials that lasts a week or you know seven days and you have three or four different doctors come in to testify.

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You got to pay those doctors 510 $15,000 per doctor per day for their testimony. Yes. And nowadays it's almost required in any significant case, you're going to hire a courtroom technology company so that when I'm putting

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exhibits up in front of the jury I can put them up on the big screen.

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Thousands of dollars a day. I agree. Every day you're paying thousands of dollars for those people's time.

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That's coming out of your pocket if you lose, but it's coming out of the award if the plaintiff wins. Yeah.

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And people have no idea what a trial costs and how much is coming back out of there. I give the jury a little bit more credit but okay. I don't want to have to be the one to say it but man I wish the court would provide an itemized list of those sorts of costs to a jury

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so they can see. Oh goodness. The first hundred thousand dollars I award in this case none of that is going to the plaintiff.

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Alright, so number four on the list of things that I wish I could tell a jury and I'm not allowed

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is what I'm asking for.

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If you have a wrongful death case or any injury case an amputation case broken bones facial scars whatever it is at the end of the day we're asking the jury to award money.

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But in Pennsylvania at least and it's one of the few states that precludes this we are not specifically allowed to ask tell them what we're asking for.

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And we're not allowed to give them any examples of other settlements or verdicts. And when you talk to juries afterwards and you say hey what is this case worth the number one answer by juries is I have no idea.

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And then their second question is well can I hear other examples and the answer is no.

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My name is no my son is no my number is no.

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You're not allowed to see examples and we're not allowed to tell you what we're asking for. If we were able to like you are in California and in New York.

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You're able to say this child lost his life. The parents have lost their child. They're asking for 50 million dollars. Here's why.

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It's an entirely different jury deliberation where they have a starting point of what we're asking for to give them some guidance and whether we're being fair or not.

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Okay just pick a number out of a hat and whatever numbers get picked more towards the media and the rest just sort of fall into that range.

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So I really think this service to plaintiffs to injured to their families and it really it's unfair from a legal perspective in my opinion that we are not allowed to tell juries what we're asking for.

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Agree. I'll note a non strenuous objection for the record. One the thing that we just talked about with attorney's fees of not necessarily having to be the one to ask for them because you look greedy is also at play when it comes to being able to articulate the exact dollar amount you want to recover.

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There's a whole art to pick in the right number there in a way that will not shortchange your case but also not make the jury think you're being greedy.

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And because we can't do it in this state I don't have a lot of practical experience trying to thread that needle or knowing what the right answer is but the other grounds that I have for objection here is this is a list of things we wish we could tell the jury.

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I think what you just gave us is number one on the list of things the jury wishes we could tell them.

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Every juror I've ever talked to they want to be kind of in line with what other jurors are doing. They don't know what the plaintiff wants.

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You know they get to the end of the case and they want to have they want to have the plaintiff win.

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They want to give you what you want and they don't know how to do it because you weren't able to ask them or tell them what you actually want.

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What counts as a win for these purposes. Yeah it's hard and I do think it belongs on our list because our job is to answer the questions which the jurors have on their mind.

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And these are the questions they have on their mind when they go to deliberate and I can't give them what they're asking for.

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Right. I think it hamstrings us. I feel like it ties one hand behind my back.

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One part of the other problem is a juror who really wants to figure this sort of thing out is now being put in a bind because they're told look you can use whatever common sense you walk in the door with but I don't want you doing research.

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I don't want you Googling stuff. I don't want you looking up this case. I don't want you looking up other cases instead of being able to ask for a number.

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You know I feel like the temptation for a juror here is boy I would like to start Googling and looking up. Oh this is a case where you know someone lost a leg.

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Let's start looking up what other cases and verdicts and settlements are when someone loses a leg so that I can kind of land in the middle of that.

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Except when they do that what they're getting is news articles and an unreliable subset of the actual data here.

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So jurors shouldn't do that. Ultimately I you know it's going to lead them in weird places. It might be great for plaintiffs right because the big numbers are the ones that make the news.

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But as a practical matter can create kind of an unbalanced view of what all the outcomes are because you Google it and what you're going to usually see are the really big numbers or the really low numbers.

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So Mike the podcast producer here you know I've been called to jury duty many times. I only made it once. And in my experience you know people complain about being called a jury duty and they want to get out of it they do anything they can to get out of it.

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But once on the jury everyone gets very serious and really wants to do the best job possible. In your experience have you seen cynical lazy juries or have you seen that in general most juries do want to do the best job possible?

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Personally I'm proud of what I've seen from jurors for the most part. Everybody's miserable when they get selected. They get notice in the mail and they look for ways to get out of it.

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But once they're selected they want to honor their oath and they want to try to follow the rules. The problem is we still aren't able to give them enough information to do their job. They have no experience coming into this and they're sort of left with too many unanswered questions in my opinion.

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Yeah let me jump off that with kind of three things right. The first is 100% agreement. Most jurors I've ever talked to or served on any jury that we've seen first and foremost what they want to do is do their job. They've been tasked with an important role in the lives of the parties of the case and in our legal system.

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And they want to do that job correctly, diligently. They don't necessarily know all the time whether it's the other stuff that's floating around in the background, the other things on this list that we can't talk about.

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Jurors even though they are trying to do their job really diligently do sometimes fixate on kind of random and unpredictable things. I saw the defendant make a certain face when a certain piece of testimony was said and that's it. That becomes like the core foundational block that they build the rest of their opinions on the case around.

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People tend to have too much belief in their ability to tell when someone else is lying to them or to read someone else's body language or facial expressions. So even jurors who are really trying to do their job I think do sometimes make that specific mistake which is they focus on a thing they saw on day four of the trial and that rather than like the actual testimony that came in is where they're really basing their opinion.

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Yeah, I agree with that. And then the other thing is jurors really do want to do their job but jurors also can get sometimes even justifiably but the legal process isn't like it looks in the movies.

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And sometimes jurors get upset because they feel like someone is wasting their time. They want to do their job but all of a sudden they're looking at the fourth witness you're coming in to come talk about the same things to establish the evidence and now they're mad at you because you know this could be over in a day and a half.

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I already know what happened. I think I do anyway. Why am I being subjected to this long winded examination? Why am I having to have this person read this document out loud to me that I've already heard two times?

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Now lawyers need to adjust to that and need to make it seem like they do in fact respect their jurors' time. But there's also a lot of requirements, boring requirements to establish evidence of record.

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And to do a case that's going to survive on appeal if there ends up being an appeal afterwards, we have to diligently introduce all of these documents into evidence so that they're part of the formal record.

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I don't want to do that anymore than the juror wants to listen to it but I have to. It's part of the process and we're required to abide by it. So we've stumbled into an honorable mention I guess here on things I wish I could tell the jury which is

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juror I found that testimony boring too but I have to do this because if I don't do this then even if you award me money the other side can appeal and the court will throw my case out because I didn't have sufficient documentation of record to support my verdict.

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Well that's why I think so few lawyers are actually trial lawyers. It is not easy to try a case. There are a hundred different moving pieces and limitations sometimes.

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Number three on our list of things we wish we could tell jurors but cannot. There's a term of art here and that term is subsequent remedial measures.

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Now this one I get from a policymaking perspective, but common sense is tricky. Right subsequent remedial measures are as a matter of law, inadmissible with limited exceptions to kind of prove control or whatever.

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So if I am suing someone because I fell down the stairs at their house and I alleged that their stairs are improperly constructed and it caused me to fall.

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And what we learn is, you know, two months after what happened, they hired a contractor to come in and tear out the stairs and put new stairs in.

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And I am not allowed to tell the jury about the subsequent work that was done on the stairs. Yeah. And likewise with an amusement park.

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All right. You're on an amusement park. Somebody gets injured after somebody gets injured. They put new seat belts or body harnesses on.

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That seems like relevant evidence to me. But the reality is we're not allowed to talk about subsequent remedial measures.

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If a juror is particularly interested in the intricacies of the rules of evidence, they're not going to know that. Now, now let me be fair to the way the rules of civil procedure are set up here.

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Unlike what I'm going to get to with number one on our list, where I think the rules of civil procedure are just wrong.

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The idea behind this rule is what they don't want to happen is for someone who has an unsafe ride with no seat belts or an unsafe set of stairs to have an economic incentive to let that dangerous condition keep hanging around to injure more people.

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We want them to fix it. We don't want to just win the lawsuit. We want them to prevent future harm.

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That's right. And so with this particular rule of evidence, what we as a society have mutually decided, and I think probably rightly, but in ways that can be very frustrating, is we want to value getting these dangerous conditions fixed before someone else gets hurt more highly than we do compensating the person who was already hurt by it in the past.

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But those two things are very much intention here, because common sense tells you if I fell down your stairs and you build new stairs.

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Damn it, I hate these new stairs.

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Or you put in new seat belts on your roller coaster or whatever. That's a pretty strong indication that something was unsafe in the first place.

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It's usually your best piece of evidence that you're not allowed to present on behalf of your client who you're representing. It doesn't make sense, but from a policy angle, public angle, I guess it does.

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Noah, number two on our glorious countdown of the five things we wish we could tell jurors but cannot.

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Yeah, number two, I think, in my opinion, should be number one, you are not allowed to say the word insurance in most personal injury medical malpractice cases.

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And that means not only do I wish we should be able to tell them, look, there's three million in insurance. We're not allowed to mention the word insurance.

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And what it leaves you sometimes is you may have a very nice cancer doctor on the stand that the jury is sympathetic to.

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And they think you have a case and they blame it was injured and they want to award money, but they're taking into the account.

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Well, this poor defendant is going to have to pay the money. And that's not the case.

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It seems like, again, it would bring greater justice, in my opinion, if we're allowed to say the word insurance.

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I understand from a conceptual level that there's kind of a framework in place where the job of the insurance company is to pay whatever it is that the person they insure is supposed to owe.

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And that should be the same whether they have insurance or not.

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As a practical matter, as far as the way justice works out, you know, people aren't great at and jurors aren't great at.

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And none of us really know how to play that game. And so the jurors are less kind of not knowing or speculating.

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Does this defendant have insurance? Do they understand, like, what insurance limits might be or how insurance limits might work?

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It can sometimes cut both ways, right? Maybe they really want to punish a defendant for their wrongdoing.

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And so they award and then they don't they didn't successfully punish the defendant at all because the insurance had to pay it instead of the defendant anyway.

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So there might be some times when it works the other way. But and the kind of the conventional wisdom among the legal profession here is like, if you say the word insurance at trial, it's an immediate mistrial.

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Always all the time without exception. You can't say you cannot mention the word.

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Can infer it can imply it. Nothing. You know, jurors are aware insurance is a thing.

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The fact that it's kind of the, you know, the silent third partner in a lot of these cases doesn't necessarily get you better results because all it does is kind of invite that level of speculation.

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I've had jurors assume there was not insurance when the defendant was sitting there.

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Now, some jurors are smart enough to know that. Don't worry. He has insurance.

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But others have actually assumed there was an insurance because there was no mention.

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You can say insurance. The lawyer didn't say he represented the insurance company.

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The bills that were submitted, like she didn't give us anything that that had, you know, a recognizable insurance company on it.

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There's a lot that can happen in a trial where people are left filling in gaps because we're not allowed to say the word insurance and they will think that it means things that it doesn't mean when all it really means is we're not allowed.

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So, sorry, jurors. The truth of the matter here is the defendant almost certainly has insurance and we are not allowed to talk about it.

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So, like, those are the ground rules I would like to establish at the outset in all of these cases.

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And finally, Noah, number one, the on your number one on your list, your list, our cumulative list number.

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This was your list number one on the list of things that apparently I but not we wish that we could tell jurors but cannot.

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And it's another legal term of art here a little bit is what they call prior bad acts.

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And this is one where, like we talked about before with subsequent remedial measures, there's just a rule of civil procedure that the jurors don't know about, have no reason to know about that precludes basically the best and strongest evidence that we have in a bunch of cases.

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This is another rule like that, except, unlike the subsequent remedial measures rule.

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The only reason this rule exists is because it is so convincing that the people who wrote the rules think that jurors won't be able to think about anything else and are just going to make their decisions based on this alone.

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So when we use the phrase prior bad actions, if I am suing a doctor who's accused of malpractice or if I'm suing a driver who's been in an accident, right, who caused the accident, unless the facts are indisputably identical and sometimes not even then, I am not allowed to talk about the fact that that driver's been in 11 prior accidents, or that that doctor has botched this surgery for prior times or other surgeries that have been done prior to this.

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Or other surgeries that aren't this surgery, but prior times they've been sued and had to settle and those what they call prior bad acts, you are not allowed to introduce evidence of prior negligent or other wrongful conduct on the part of a defendant in order to prove conduct in conformity therewith.

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You can't talk about what they did before to prove your case and you can't talk about what was done afterwards to prove your case. You need to prove your case based on the acts of what happened.

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What makes this doubly bad, and we had this in a case when we talked to the jurors about it afterwards, a case that we won, but a case where the distribution of liability and the amount of damages may have changed if the jurors weren't doing this.

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But not only are we not allowed to talk about the fact that there were these prior incidents where the defendant was negligent, but the fact that we're not allowed to talk about it means the jurors start making assumptions that this is the first time.

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We had a juror in an accident involving a motor vehicle tell us afterwards that, well, we assume this was the guy's first time because you didn't tell me about any prior incidents.

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There were prior incidents that we tried to get into evidence and the court wouldn't let us.

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And because we couldn't talk about that, we now have jurors making false assumptions, which is that the defendant in this particular case has a clean record up until now and has never been found at fault in prior car accidents or has never cut off someone's wrong leg before or whatever it is.

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The fact that we're prohibited and the fact that jurors don't know we're prohibited means jurors are making totally false assumptions about defendants that this is a one time occurrence and this defendant is basically safe.

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And that's why it's number one on my list. Yeah, well, I can see that. And these are game changing facts, too.

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I mean, these are things that a juror would have decided differently had they known them with both before and after.

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But the courts look at it as so prejudicial and they have to weigh the prejudicial value versus the probative value.

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You know, I was watching the Murdoch trial and he was arrested for the double homicide and the prosecution wanted to get in his prior bad act regarding all the dollars he stole from everybody.

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And the judge said, no, prior bad acts are not admissible, especially prior bad acts of theft to prove murder. Right. But once the door gets open and I don't know if we want to get into that or not.

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The floodgates are open. It can depend. Right. Sometimes you can open the door. But ultimately, the court is still going to play a gatekeeper role of you have an outright prohibition in the first place.

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Yeah. And then even once the doors open, the court's going to weigh each individual individual piece of evidence to decide if it's quote unquote prejudicial to the defendant.

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But to me, the thing that's baffling is it's like the line from Liar Liar. I strenuously object. Why? Because it's devastating to my case.

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That's basically the underlying policy behind this rule.

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Jurors will hear this and they won't care about anything else they hear because they're going to find out this guy had three prior accidents that he was also at fault in.

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But what it says overall, when you look at all five things that we've put on the list collectively, plaintiffs in Pennsylvania, it's not a fair playing field.

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It's not a level playing field. There's a lot of stuff in the law that definitely, definitely is put in place by and protects and helps defendants.

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Look, I'm sure if you had defense counsel on here, someone who represents insurance companies all their life, they would also have their own list of things they wish they could say to the jury.

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Could you even think of a list of five that defendant lawyers could make a list of things they wish they could say?

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Maybe social media posts or maybe some prior bad act to the plaintiff to show them drunk or some embarrassing moments on social media before.

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But there's not a lot of things that defendants don't get to do.

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Well, yeah, I mean, I'm sure they would have a list of five. I don't think that list would be nearly as good as the list we just put together.

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I think in the end, most of the gatekeeping that goes on from an evidentiary perspective and what we can and can't say to jurors ultimately redounds to the benefit of defense.

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Well, I do have a layman question about all of this.

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And you kind of hinted at it a little bit earlier, so you may have foreshadowed the answer to this.

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But what happens if any of these things are mentioned during the course of a trial?

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I mean, is it an automatic mistrial or a reprimand or are you dragged out like Al Pacino and justice for all?

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Hold it. Hold it. I just completed my opening statement.

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It's the judge has the discretion and it can be either through a curative instruction where the judge may say you are not to consider these specific facts and the tone and demeanor of the judge can actually hurt you more than those facts.

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You know, it can be counterproductive. Don't think about pink elephants.

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But certainly either side, when these things happen, can request a mistrial and if denied, can then have appellate issues and say this should have been a mistrial.

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Yeah, I mean, so the answer basically is very case by case.

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It depends how far you are into the trial. It depends on how overt your violation of these rules are.

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You know, if you start talking about insurance, you're pretty likely to get accused of a mistrial.

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But, you know, if it's an innocent slip up where a piece of documentary evidence that gets in happens to say Allstate in the corner or something, that's not going to be the grounds for a mistrial.

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You know, if it was relatively minor.

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So the other thing, and this is an entire procedural step that the jury might not know about, is there are things called motions in limine that are brought in front of the judge before any jury trial, where both parties essentially knowing that there is the risk of prejudicial or otherwise

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in invisible evidence being offered will go to the judge before the trial and seek an order saying something like we would like the court to enter an order that says that we're not allowed to talk about the accident that occurred in March of 2018.

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In this case, that's about the accident that occurred in October of 2020.

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So, a lot of a lot of the times, the biggest and most important evidentiary disputes about admissibility get handled at least in the first instance, prior to the start of the trial out of earshot of the jury, where the judge enters ruling about what you can and can't say.

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And if you if you just flagrantly violate a court order telling you you're not allowed to talk about this.

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I mean, you're very likely to get a mistrial and to get all sorts of sanctions imposed on you as a lawyer, you're going to get a mistrial, you're going to have to pay everyone's court costs, you're going to have a ton of problems laid at your feet.

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If the judge tells you you can't talk about it, you do it anyway.

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And I know Mike's always interested in the legal angle coming as a layman. Many cases are won in the motions in limine before the jury ever enters the room, based on what's admissible and not admissible.

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And I think the place where I think laypeople from watching the news or whatnot are most familiar with that occurring are, you know, in the context of criminal cases where they have hearings about whether or not a confession is admissible as evidence or not, or whether or not a particular video.

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Suppression of evidence.

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So in the criminal context and in news stories, people have some familiarity that, oh, right, yeah, there are those things that go on before the trial even starts about whether or not certain things are admissible.

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In basically every civil trial that gets to actual trial, there are some version of those kinds of hearings that go on where, and usually it's the defendant's asking, generally the rule is the plaintiff's won everything in and the defendant's want to limit it as much as possible.

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There's always at least some number of motions that have been presented to the judge, and we don't know how he ruled as a juror, but one of the things that happened outside of your earshot is the judge has put in place a bunch of court orders about what specific things that parties may want to introduce as evidence are allowed in and what things aren't allowed in.

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And that'll do it for this episode of I strenuously object. If you have any feedback to give to the podcast. If you have any questions for our mailing it in segment or any feedback whatsoever, email us at iobject at pghfirm.com.

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Please rate, subscribe, review the podcast, tell your friends, you know, download us multiple times, whatever you got to do to keep this thing popping.

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Visit our Instagram, that's I strenuously object podcast. Instagram is a thing, it exists, I don't know anything about it, but you might, and if you do, we're there. For any more information on civil litigation, personal injury, medical malpractice cases, or any legal issues whatsoever, do visit our website at pghfirm.com.

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Until next time, some parting advice.

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Noah, are we adjourned? We are adjourned.

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