Whatever You Do, Don’t Say “Insurance”
Why Saying "Insurance" Can Cause a Mistral.
Whatever you do, don’t say the word “insurance.” That’s assuming you want to avoid a mistrial, getting a much-deserved ear beating by the judge, and sanctions.
So, what’s the big deal? How is it that one word carries so much weight? Well it’s less about the word “insurance” and more about the effect it may have on a jury. Fearing evidence of the presence or absence of insurance may sway jurors in one direction or the other, there are several sources of law that prevent the mention of existence of insurance in personal injury cases and many other types of trials.
Why hide insurance from personal injury jurors?
Ask a hundred personal injury lawyers if they wish they could mention “insurance” at trial, and you won’t hear a single “no.” Why is that? Well, it comes as no surprise that personal injury lawyers typically ask for big dollars if they go to trial. This is particularly true if the case involves serious injuries, if the lawyer wants to “anchor” the case value higher, or a combination of the two.
It’s natural for a juror to want to know whether a defendant can actually afford to pay the amounts that the jury will potentially award. Assuming the defendant appears to be anything short of a comic book villain, most jurors don’t want to bankrupt defendant to compensate a plaintiff. However, if the defendant has adequate insurance coverage for the underlying incident, which they nearly always do, then there is little to no risk of personal financial exposure to the defendant. By telling a jury that insurance exists, a personal injury lawyer would essentially be easing their financial concerns for the defendant.
Why you should hide insurance from personal injury jurors.
If you’re smart (which you are since you’re reading this), you’ve figured this out. If a jury knows insurance is coverage an injury or a loss, then it’s theoretically possibly that knowledge may affect their decision on who was responsible for the incident and how much the injury or loss is worth. It’s possible that a juror may care less about the consequences of their decisions if they know that it won’t negatively affect the persons involved in the case, and will just be another drop in the bucket for a big insurance conglomerate.
At the conclusion of closing statements in every jury trial, the jury is read jury instructions. In California, those instructions are called Judicial Council of California Civil Jury Instructions, or “CACI” for short. CACI No. 105. discusses insurance, and states:
“You must not consider whether any of the parties in this case has insurance. The presence or absence of insurance is totally irrelevant. You must decide this case based only on the law and the evidence.”
This instruction will undoubtedly be read to every juror on every personal injury case in California.
Should we say "insurance" anyway?
Do you like playing with fire? Apparently, some lawyers do. Depending on their appetite for risk, some lawyers may attempt to walk a very, very fine line of not mentioning the existence of insurance, but implying that it exists. How is that possible, you ask? Well, one example may be reading CACI No. 105 to the jury as part of a closing argument, and putting a certain emphasis on the fact that you can’t mention whether insurance exists. However, do this with extreme caution. The judge may not take kindly to gamesmanship, and may call you out for your actions. If that happens, the impression of being a “cheat” in front of the jury may be devastating to your client’s case.
The truth is, only a fraction of cases ever proceeds it to trial. Most personal injury cases settle before a lawsuit is filed. Of those cases that filed, the majority settle during the many months between filing and trial. There’s an old adage:
“Prepare for trial, and your case will settle. Prepare to settle, and your case will go to trial.”
At Sina Rez Law, Personal Injury Lawyers, we start every case by thinking of our closing statement. By “working backwards,” we maximize the value of our clients’ cases and expedite their resolution.
