I was recently confronted at a family gathering. A family member was taken back by a note in one of our recent e-newsletters. The note concerned a successful outcome in an appeal of a case brought by our client against a teacher.
My relative was polite and gracious, but also a bit surprised. Surprised that I filed and prosecuted a case against a teacher. The inference underlying our discussion was that we weren’t doing ourselves any favors by publicizing our pursuit of a case against a teacher, a member of a profession dedicated to serving our children for relatively little pay.
The inference is based on a bad assumption – that the teacher will pay the judgment if the jury finds against the teacher and the court enters a judgment for our client.
Who Pays When There is a Judgment Against an Individual?
Insurance exists to protect people that make mistakes. Mistakes are inevitable; all of us make them. And, sometimes, the mistakes we make cause injury to others. Insurance helps spread the burden of the harms and losses resulting from our mistakes.
Missouri requires an injured person file his suit against the person or business that caused his harm – called the “defendant”. That’s the case even when the defendant is insured. In fact, Missouri law prohibits an injured person from naming or “joining” the insurance company as a defendant in the case.
Once sued, the defendant contacts his insurance company and lets it know of the suit. The insurance company then stands behind its insured – whether a person or business – at every step. The insurer provides the defendant with defense counsel, pays that lawyer’s fees and those expenses necessary to defend the case, and works with the lawyer in the defense of the case. With few exceptions, the insurance company decides which claims to pay and which cases to take to trial. Defense counsel is typically very good at what she does, often dedicating her practice to the defense of the type of claim at issue.
When we do our job and are fortunate to obtain a verdict, the verdict will be paid by the insurance company – not by the defendant. Insurers are obligated to pay verdicts up to the amount of the coverage purchased by their insured.
So What Happens at Trial?
My family member is not alone. Matt and I hear similar comments each and every time we try a case. In fact, it’s the rare case when a potential juror doesn’t ask us about insurance coverage during jury selection. Folks want to know who’s going to pay the judgment or, better stated, any verdict that might be entered against the defendant. We hear these questions in nearly every case – even in cases involving collisions where, we figure, most people know that Missouri law requires all drivers to have insurance coverage.
However, Missouri law prevents all of the parties from mentioning during the trial that the person or business that’s been sued has insurance coverage. If “insurance” is mentioned, both parties have the right to ask the court for a ‘do-over’; the court must declare a “mistrial” and the parties pack their bags and come back another day and begin the trial all over again.
Insurance is Involved in Nearly Every Personal Injury Case
Let me be clear: the vast majority of cases that Matt and I handle are brought against people, businesses and governments that are insured. That’s true not just for us, but for other lawyers that represent injured people.
Think about it. Suits are expensive for injured people to prosecute. The fee for filing a case in the City of St. Louis is $167. The fee to file a case in federal court is even more – $400. At a minimum, two depositions are taken in every case (I can’t remember the last time I tried a case where I only took two depositions before trial); the typical fee charged by a court reporter for an hour of time is in the ballpark of $500. And every case requires copies of our clients’ medical records, which providers are allowed to charge a handling fee ($22), notary fee ($2) and price per page for copying ($.52).
The cases become even more expensive when medical or other expert testimony is required – which is the majority of the time. Three weeks ago I deposed an ENT in a medical malpractice case I’m prosecuting in Hillsboro. The ENT billed $1,800 for just under two hours of his time – and he was reasonable. It’s not unheard of for Matt or I to depose a doctor whose hourly fee is in excess of $1,500.
You get the idea. And we’re just skimming the surface on the kinds of expenses that are incurred by our clients.
Have Our Clients Sued Someone Who Wasn’t Insured?
The reality is that Matt and I – and I bet most lawyers in our practice – turn down the vast majority of cases involving a claim against uninsured people. These matters simply aren’t viable for our clients – financially, mentally or emotionally.
The hardest thing that many people will ever have to do is sue another person. Our clients must invest themselves in their case. Suit requires them to answer written questions under oath and sit for deposition. At deposition, they may be interrogated by defense counsel about the most personal aspects of their lives. And, sometimes, they have their motives challenged at trial before a jury and the public.
Don’t misunderstand me. Matt and I have prosecuted people who were not insured. I can count the number of these cases that I’ve handled over 18 years on one hand. Three cases come to mind, one of which involved a sexual assault of a minor, the second debilitating injuries caused by a drunk driver, the third terrible harm resulting from horrible legal representation.
One of the cases is closed. The client collected nothing and never will. I pull the other two cases out of my cabinet from time to time to check the whereabouts of the defendants. Neither is gainfully employed nor own anything of any real value. In our world, we call these folks “judgment proof”.
Our Practice is About Accountability
I hope that you get the idea. I promise that Matt and I take no joy in bringing suit against anyone. But, we are proud – proud to help folks injured by others, people often at the lowest points of their lives, people needing our direction and instruction.
The reality is that when individuals, businesses and insurance companies take responsibility for harm that results from negligence – that is, be accountable – lawyers and lawsuits are not necessary. However, when an insurance company refuses to let its insured take responsibility, our clients must make tough choices, including whether to bring suit and fight on.
From time to time our clients try their cases to juries. At the end of each case, we ask the jury to hold the defendant accountable for failing to do that which Missouri law commands it to do – act as an ordinarily careful people would under the same circumstances. If we’re successful, we move to collect the judgment entered by the trial court. The defendant’s insurance company will pay the judgment.
I’m not ashamed.