Statistically speaking, less than 5% of all civil cases ever make it to trial, so if you are involved in an Oklahoma trucking collision, car wreck, premises action or any other type of case resulting from someone’s negligence, the odds show that most cases will never be heard by a jury.
However, for those individuals whose cases do not settle, a trial by jury can often lead to a lot of questions and anxiety about what to expect. Having a prepared, experienced personal injury attorney on your side is essential to easing the burden on the client. The attorneys at Biby Law Firm know that while only a few cases will make it to trial, each and every case must be handled as if they will. That preparation begins the day of the incident, not when a trial date is announced. Gathering evidence, locating witnesses, employing experts and aggressively pursuing the matter throughout discovery avoids the chaotic scramble that comes when an unprepared lawyer realizes a case they are handling will in fact have to go to trial.
What damages am I allowed to claim at trial?
Almost every personal injury case, whether it be an 18-wheeler wreck, car collision or various other types of claims caused by negligence, involve the relatively common components of medical bills, pain and suffering and more times than not, loss of wages or income. While a good starting point, the list of compensable damages in a civil case which will be given to a jury for their consideration is contained within Oklahoma Uniform Jury Instruction (OUJI) Number 4.1. The jury will be told they may consider the following elements when deliberating a potential verdict:
- [His/Her] physical pain and suffering, past and future;
- [His/Her] mental pain and suffering, past and future;
- [His/Her] age;
- [His/Her] physical condition immediately before and after the accident;
- The nature and extent of [his/her] injuries;
- Whether the injuries are permanent;
- The physical impairment;
- The disfigurement;
- Loss of [earnings/time];
- Impairment of earning capacity;
- The reasonable expenses of the necessary medical care, treatment, and services, past and future.
Injury-causing events, particularly those involving wrongful death, traumatic brain injuries, spinal cord injuries like paralysis, burn injuries and other catastrophic injuries that impact the individual victim’s loved ones and immediate family too. Oklahoma law allows for a spouse or child to claim loss of consortium for the deterioration or loss of one’s relationship with the injured party in addition to the claims being brought by the injured party personally.
Pre-existing injuries, complaints and treatment – Aggravation of injuries
It is not uncommon for people who are injured as a result of someone else’s negligence to sustain aggravations to conditions and ailments which had plagued them in the past. Known as the “eggshell Plaintiff rule,” even if someone of normal health would not have been injured by a particular event, if an individual is harmed because of a condition that makes him or her susceptible or injury prone, the at-fault party is still responsible for any harms and losses caused by their actions. However, under OUJI Number 4.10, only the new injuries and aggravations are to be compensated by the jury, not the pre-existing issues the Plaintiff had beforehand.
Determining what injuries are new, and therefore compensable under the law, and what are old is a distinction that requires both legal and medical expertise. Careful analysis and scrutiny of objective studies such as x-rays, MRIs and other diagnostic tests paired with a understanding of a client’s subjective complaints and symptoms pre and post-incident will help form the foundation of any response to an insurer’s argument that certain injuries preexisted and are unrelated to the event in question.
Miscellaneous rules impacting personal injury trials
Every trial takes on a life of its own and can involve countless issues of law and fact that independently warrant extensive discussion. Below are brief summaries of a few of the more frequent variables of trial that many people do not realize or fully appreciate.
No Mention of Auto Insurance
Sometimes the most egregious conduct associated with a personal injury case comes after the event itself. While tasked with the obvious responsibilities of investigating and documenting a claim, insurance adjusters routinely employ tactics that are designed to inhibit, frustrate or outright mislead injured persons pursuing claims against their insurance company. In fact, sometimes those tactics result in people unknowingly and prematurely closing their claim for pennies on the dollar. Some plaintiffs look forward to the day when they will be able to public vent to a jury about their horrible experience dealing with Insurance Company X, how rude and deceiving they were and how, without any evidence, insinuated the client was at fault or faking or lying. Unfortunately, under Oklahoma law any such testimony regarding liability insurers and adjusters will be strictly prohibited. No matter how disturbing the conduct of an at-fault insurance company or their employees, the case of Redman v. McDaniel forbids the mention of insurance at trial or informing or inferring to the jury that the judgment would be paid by insurance. Generally speaking, the mere mention of liability insurance, particularly by Plaintiff or his or her attorney, will be grounds for a mistrial. Even though most jurors realize insurance is calling the shots behind the scenes and will be responsible for any verdict, the unexplained absence of insurance at trial oftentimes causes jurors to falsely speculate that the defendant was uninsured or that insurance has already paid. Except for the rarest of circumstances, insurance companies are actively involved and participating in trial even though the jury will be prevented from seeing or hearing about their presence.
Medical Bills and Health Insurance
Big injuries come with big damages. Ambulance rides, hospital stays, surgeries, at-home care and future medical expenses all come at a cost to be borne by the victim. Sometimes those expenses are paid, or could be paid, by an individual’s health insurance. Determining if, how and when to utilize health insurance is an important strategic decision a client should make with their personal injury attorney once all relevant information is known. As further discussed below, the ramifications of what a plaintiff elects to do will be felt throughout the case including at trial.
If health insurance is used to pay case-related medical bills the payor will have a right of subrogation against any settlement or verdict the victim receives. Simply put, the health insurer can and will seek to be repaid for what they spent if there is a recovery. It is important to remember that if there is no recovery by the plaintiff, there is no subrogation to be paid. Similarly, under 12 Okla. Stat. 3009.1, the amount of medical bills which a plaintiff can present at trial can be limited if insurance adjustments or other write-offs have reduced the initial bill. Assuming the requirements of 3009.1 are satisfied by the defense, a person with $100,000.00 in medical bills that were paid at a discount rate of $25,000.00 by their health insurer would only be allowed to present $25,000.00 of medical expenses to the jury.
So how do I win?
The attorneys at Biby Law Firm are licensed to practice in all Oklahoma state courts and all three of the state’s federal courts. Which jurisdiction your jury trial is in will dictate how your jury is comprised and what they must do to reach a verdict. In Oklahoma state courts the jury is normally comprised of 13 adults (12 jurors and 1 alternate). Assuming the alternate is not utilized prior to the jury being asked to begin deliberations, he or she will be excused, leaving the initial 12 to render a verdict. State law requires consensus of at least 9 out of the 12 for a verdict to be reached.
Whether you are in the Northern, Eastern or Western District Courts of Oklahoma, federal rules differ from those which apply to state courts. While the federal rules allow for 6 – 12 jurors under some circumstances, the normal practice is for 6 jurors to be seated in a civil case. Unlike state court, the jury must reach a unanimous decision when a civil trial is conducted in federal court.
Hiring Tulsa personal injury attorneys who understand the respective courts and the pros and cons that come with each venue can be the difference in obtaining a faster and/or more favorable result. Often overlooked by some attorneys, the attorneys at Biby Law Firm know that a plaintiff’s choice to select the court where his or her action is filed is the first opportunity to gain an advantage in every case.
To get started on your case, please call us in Tulsa at 918-574-8458, or fill out our contact form. Biby Law Firm is proud to offer free consultations throughout their statewide practice including Tulsa, Broken Arrow, Bixby, Claremore, Jenks, Owasso, Skiatook, Pryor Sand Springs, Sapulpa, Wagoner and Muskogee.