Frequently Asked Questions About Personal Injury Cases

Here are some of the questions that we frequently hear from jury members after trials of car wreck cases. If you have other questions or comments, feel free to call the law firm of Morris, Cary, Andrews, Talmadge & Driggers, LLC toll-free at 800-638-3665.

1. Did the Defendant have insurance or is he going to have to pay the judgment out of his own pocket?
   The law excludes the introduction of the fact that the defendant had liability insurance. This exclusionary rule has traditionally been interpreted very broadly so as to preclude any testimony or evidence that in any way may tell the jury about the existence of liability coverage. This exclusion often allows skillful insurance defense lawyers to imply that the defendant will have to pay any judgment returned in the case out of their own pocket. Also, many times our clients hire us after trying to resolve their claim with the insurance adjuster for the adverse party or when they feel they are not being treated fairly by the insurance company. This exclusionary rule often prevents us from presenting any evidence as to why our client had to hire us. This allows skillful insurance defense lawyers to imply our clients are "greedy sue-happy" people because they hired us.
   
2. If the defendant did have insurance, how come the defendant was sued and not his insurance company?
   Again, another good question. The defendant was the person who actually committed the action made on the basis of the Complaint and therefore he or she has to be the named party to the lawsuit. Some states such as Louisiana have enacted legislation that allows for the victim to directly sue the other parties insurance company. We believe this type of direct action is fair and needed in Alabama. Especially since under most liability policies, the insured has no say in whether a case settles or has to go to trial. It has been our experience that most individuals, victims and defendants, do not want to go through the rigors of litigating a case. In fact, we tell our clients, a lawsuit is like surgery...it should be a last resort. Our office has a policy of making a good faith effort to settle a matter with the at-fault party's insurance carrier before initiating any type of lawsuit against the defendant. Yet many times we find ourselves having to try a case against a defendant who probably would have preferred that the case settle. If the insurance company and their lawyers are going to be the ones calling all the shots, they ought to be the ones standing in front of the jury instead of hiding behind the defendant. NOTE: We understand that legislation allowing for lawsuits directly against the insurance company for the at-fault party (Civil Liability Standards Act) will be presented in both houses of the Alabama Legislature soon. When this occurs, we hope you will consider supporting such a law.
   
3. If the law does not allow us to be told that the defendant has insurance, why did the defendant's lawyer get to tell us about the victim's health insurance?
   Good question. For years Alabama law excluded all evidence of insurance coverage. The idea being that the existence of insurance, or lack of insurance, for either party was not a relevant issue to the question of liability and the assessment of damages. However, in 2000 the Alabama Supreme Court changed this long history of common law and ruled that the defendant in a civil case can introduce evidence that the victim's bills were paid by the victim's health insurance carrier. The Court left standing the exclusionary rule about the defendant's liability insurance coverage. We don't think this is fair for the victim, but it's the law.
   
4. Why didn't this case settle?
   There are lots of different reasons why cases don't settle. The most common reason is that we cannot come to an agreement with the insurance company about the value of the case. It's hard to know what twelve people are going to decide in a case. We have some general ideas and can make an educated guess as to what we think a jury might do with the case but trying to predict exactly what will happen is impossible. Ironically, it's this uncertainty that helps make cases settle. In automobile accident cases we have found the insurance industry has three "red flags" that adjusters are trained to look for in auto-injury claims:
   
   1. A delay in treatment. Unfortunately many victims of an automobile accident wait several days or weeks before going to see a doctor or before following up with a doctor. The reason for this is usually that they hoped the pain would go away on its own without need of further care. But skillful insurance defense lawyers often use this fact to try and minimize the victim's claim: for example, "If he was really hurt he would have gone to a doctor sooner."
      
   2. Minimal property damage. Despite the insurance industries own studies that show drivers who are involved in small "fender benders" get hurt 14% of the time, insurance companies know that their lawyers can hold up pictures of the nominal property damage and use those photos to question the validity of the victim's injuries.
      
   3. Prior similar injury. Medical studies show that certain prior similar injuries can make a victim much more susceptible to re-injury. Yet skillful insurance defense lawyers use that prior injury as a smoke screen and try to blame all of the victim's problems and pain complaints on the old injury. If a case involves one of these factors, even if liability is clear, there is a good chance it will end up in Court.
      
5. Did the defendant offer to settle and, if so, why wasn't the jury told?
   The law wants litigants to try and settle their disputes without need of trials. This public policy of encouraging settlements is the basis for the evidentiary rule that generally makes settlement offers and negotiations not admissible. The rational is that if settlement offers were admissible they might be construed adversely to one of the parties. Such a result could then discourage parties from entering meaningful settlement negotiations for fear it could hurt their case if it went to trial.
   
6. Why didn't the jury get to see the accident / incident report related to this case?
   Accident reports and incident reports are often excluded from evidence because the officer or person who completes the report is usually doing so with information he or she has gotten from other people. This means these reports contain a lot of "Hearsay".
   
7. What exactly is Hearsay?
   Hearsay is legally defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is not admissible. For example, if a witness testifies that at the scene of the accident, "John said the defendant was speeding." If that testimony by the witness is being presented to try and prove the defendant was speeding, then it is hearsay. The exclusion of Hearsay testimony arises because the law has great respect for the power of cross-examination. In the above example the defendant's lawyer would not be able to cross-examine John to test the accuracy and veracity of his observation. However it must be noted that there are hundreds of exceptions to the Hearsay rule.
   
8. This was such a small case, why couldn't it have been tried in a lower level court?
   The fact is it very well could have been tried in a lower court. The District Court, which is below Circuit Court, is designed to speedily and efficiently handle civil disputes where the dispute involves $10,000 or less. Because it is less expensive and quicker, we often file smaller cases in District Court. The only draw back to this process is that if the defendant's insurance company does not like the result in District Court, they can make the defendant appeal the case to Circuit Court where they get to ask for a jury trial and get to make the victim try the entire case all over again. When such a case comes before the jury, the victim is precluded from telling the jury that the case was originally filed by the victim in District Court. Many insurance companies have a strict policy of appealing all District Court cases and demanding a jury trial. Then at trial their skillful lawyers act indignant that the victim is "wasting our time" with this lawsuit about a little injury. Many of the smaller injury cases that we handle start out in District Court. An adjuster recently asked us why we were wasting time filing a case in District Court "because we're just going to appeal the case anyway." Our response to him and all insurance companies with this cavalier attitude is that we have District Court for a reason, and that reason is so that smaller cases can be resolved without a lot of unnecessary expenses. So if you, or a friend or family member, ever ends up sitting on a jury in a small case, don't automatically think it is the victim's fault that your time is needed on such a small case.

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3334 Ross Clark Circle 36303
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Dothan, Alabama, 36302
334-792-1420
800-638-3665 toll free
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