It's the big elephant in the room.
In cases involving car accidents, medical malpractice and wrongful death matters that go to trial, it is critical to talk to jurors about the obvious and not so obvious.
Our goal during jury selection is to explore potential jurors biases and prejudices.
How many people do you think would raise their hands if we asked the blanket question “How many of you are prejudiced?”
Nobody would outwardly acknowledge that they are biased or prejudiced.
Remarkably, everyone carries biases and prejudices. Yet nobody openly wants to admit it.
The goal of an experienced trial attorney during jury selection is to engage jurors in discussion to find out if they have something in their background or history that may cause them to favor one side or the other.
A topic that is prevalent with many potential jurors is frivolous lawsuits.
They have been indoctrinated by different lobbying groups that people who bring lawsuits are doing it only for the money. Those same lobbying groups have indoctrinated the general public that most lawsuits are frivolous.
If you spend any time in New York handling accident cases or medical malpractice cases or wrongful death cases you would quickly see how untrue that statement is.
In fact, as an example, in a medical malpractice case in New York, before we are permitted to file a lawsuit, we are required to obtain a qualified medical expert who has reviewed all of the records in your case. Only if our medical expert confirms that there is a valid basis for a case are we permitted to file a lawsuit on your behalf.
This is a filter specifically designed to prevent those cases that do not have merit from entering the legal system. Of course, the defense will always argue that our medical expert was inherently biased or unqualified and still believes we don't have a valid basis for a case.
Many potential jurors have been influenced by the McDonald's hot coffee case that happened many years ago.
For those of you who don't remember the details or are unfamiliar with the case let me share with you some of the facts...
The case involved a woman named Stella Leibeck who went to a McDonald's drive-through and ordered a cup of coffee. The coffee was handed to her and since she had no place in the car in which to put the coffee, she placed it between her legs. The coffee cup became crushed and the coffee within splattered all over her legs causing her severe burns. She required medical care and treatment.
Stella brought a lawsuit against McDonald's simply because McDonald's refused to pay her medical and hospital bill which was approximately $10,000. As a result, Stella had no choice but to seek compensation through a lawsuit.
Her case went to trial and a jury ultimately compensated her $3 million for the pain, suffering and injury she experienced as a result of McDonald's negligence.
This verdict made national news and became the highlight of many late-night comedian jokes. The public was outraged that someone who intentionally put coffee in their lap and suffered burns from hot coffee could have a jury somehow compensate them for an astronomical award of $3 million.
The newspapers had a field day with this.
Most people who read the news stories were outraged that a jury could have awarded this woman so much money over a spilled cup of coffee.
However, if people actually learned the facts surrounding the case, they would quickly learn the reason why the jury was so outraged and gave her such a large amount of money.
You see, McDonald's made a decision a long time ago to heat their coffee at an extremely high temperature.
Most other companies heated their coffee to 120°-150°F. McDonald's made a conscious decision to raise their temperature to 180°. Their rationale was their coffee would stay fresher longer if they heated it to this temperature.
At the same time, there were reported incidents of people across the country who had been burned by their coffee. There was an actual calculation and decision made that McDonald's would rather generate profit from more coffee sold a higher temperature and acknowledge that there would be some segment of the population to suffer significant burns as a result of their high temperature.
In other words, the facts revealed that McDonald's was aware that their high temperature of their coffee were causing some people to become burned. They made a conscious decision that that would be an acceptable number of adverse incidents that they would have to pay some money on compared to the amount of revenue and profit they could generate with this elevated coffee temperature.
The jury was apparently outraged that McDonald's was fully aware that their coffee would cause burns and considered it an acceptable risk that they were willing to take in order to justify higher revenue and profits.
Even though the jury decided that Stella was entitled to receive $3 million in compensation, she only received a fraction of that jury award.
Interestingly, you don't hear sensationalized news reporting about what she ultimately walked away with besides the burns to her legs.
Getting back to the original topic, why do we need to talk about frivolous lawsuits in jury selection?
It's because the majority of potential jurors know about the McDonald's coffee case. What they don't know however are the details that led to that jury verdict. They believe that cases like that are frivolous and should never have been brought. However, once you learn the details of what actually occurred, then it becomes quite clear that that case clearly was not frivolous.
Because of the litigious nature of our society today, there are many skeptical people who believe that injured victims will sue at the drop of a hat. It is critical in jury selection to let jurors know that people who have suffered injury as a result of someone else's carelessness have an absolute legal right to bring a lawsuit seeking compensation for the harms and losses they suffered.
It will be up to the jurors to collectively determine whether we have shown that we are more likely right than wrong that what we are claiming is true.
It will be up to these jurors to determine whether we have shown that the other driver was careless and responsible for the injuries my client suffered. The jury will ultimately determine who, if anyone, is legally responsible and whether someone was careless whether by a doctor, a hospital or a car.
Lawyers who don't discuss frivolous lawsuits during jury selection, in my opinion, are doing their clients a disservice because they fail to discuss the elephant in the room that everyone is thinking about but no one is talking about.