It is the little dark secret that peeks inside the courtroom through stoic-looking windows or the elephant in the room that no one is allowed to speak of, or reference, or even whisper in the presence of the jury. It’s taboo, prohibited, proscribed, the poster child of Orwellian Newspeak for modern day litigation. Say the word — one word — and you and your client are out. Quite literally.

What is the demonized word so carefully excluded from nearly all jury trials in the United States? You guessed it. The magic word is…(drum roll)…INSURANCE.

Anyone who has ever sat on a jury likely understands what I mean. Many jurors ask themselves throughout trial, “doesn’t the defendant have insurance?” And, most question why none of the attorneys are talking about the defendant’s insurance policies.

Let me put a few things to rest:

1. Yes, the defendant has insurance. Although this is not true all of the time, in nearly ALL cases the defendant in a personal injury or malpractice case has insurance coverage — and plenty of it. The reason is simple: lawyers are not going to put their clients through lengthy litigation and invest hundreds of hours of work hours into a case unless there is a reasonable likelihood their client is going to be able to recover just and fair compensation at the end of the day. In other words, most lawyers avoid cases where the defendant is uninsured because they know the chances of achieving a monetary award for their client will be very, very challenging. Of course there are, on occasion, cases that simply must be brought on principal or for reasons unrelated to achieving compensation for clients, but even in those cases most defendants are insured. The bottom line is — when you are in court, sitting on the jury and wondering if the defendant has insurance to cover and verdict awarded against him, rest assured the answer is, in all likelihood, yes.

2. The Courts don’t let us tell you about it. That is the hard and fast rule. Mutter the word “insurance” and most likley the case is headed for a mistrial. The rationale behind the rule is somewhat understandable — in theory the jury is supposed to reach decisions about liability and damages without taking into consideration whether the defendant is insured. However, what ends upon happening in the Real Courtroom is jurors end thinking about insurance, and assuming the defendant ain’t got none because no one spoke of it during the trial. The result? Jurors feel bas for the defendant who stands to lose everything and base their decisions — in part — on whether they feel the defendant is insured or not, the exact result the rule was designed to protect against.

3. The Insurance Company is running the show. Don’t be fooled. Even though the word insurance makes like Prince’s former name during trial, the Insurance Company is everywhere. In nearly all cases the Insurance Company hires and pays for the defendant’s lawyer, makes the ultimate decisions of whether to settle the case or go to trial and calls the shots in terms of how hard to press the defense. Who is in charge? The Insurance Company — the one entity whom the jury is led to believe does not even exist.

The bottom line is knowledge is power. Whether the defendant is insured or not should not influence your decision making if you are selected to sit on a jury. Just realize how the game is really being played…

Thanks for reading,

Christina Bruner Sonsire, Esq.