Jury trials are supposed to be a search for the truth, so it only makes sense Rule 3.3 of the Rules of Professional Conduct prohibit lawyers from making knowingly false statements of fact to the court or juries. Unless, that is, the Rules of Evidence require lawyers to lie. Without any empirical evidence that I’m aware of supporting such a bizarre notion, the Rules of Evidence not only sometimes allow but require lawyers to lie to prevent feared prejudice against poor, defenseless insurance companies.
It not like other lawsuits aren’t brought against insurance companies. Claims for storm or fire damage under homeowner insurance policies are routinely brought directly against the insurance companies. I’m not aware of juries uncorking on homeowner insurance companies for no good reason in such cases. Even if juries do get overly enthusiastic every once in a while in such cases, there are post-verdict motions and appellate courts to moderate any unjustified awards. But, when it comes to run of the mill wreck cases, however, the Rules of Evidence are convinced the mere mention of the word insurance will result in dimwitted jurors being completely dethroned of any semblance of reason and fairness. So much so, wholesale lying to juries is not only allowed, it is required.
It starts when lawsuits are initially filed. Lawsuits to collect personal injury damages under an automobile insurance policy are brought, not against the real party in interest, the at fault driver’s insurance company that will actually pay any judgment, but against hapless drivers. The Court tells the jury at every stage of a trial that the defendant is the driver and they have to return a verdict for or against the driver. Insurance company lawyers that are hired and paid for by the insurance companies lie and say they represent the driver. It may be true jurors, who are required to pay exorbitant automobile insurance premiums themselves, sometimes ignore the lies and figure out who the real party at interest is but relying on juries to figure out they’re being lied to is a piss poor way to seek the truth in a courtroom. Too often it doesn’t work and human jurors easily swayed by sympathy can deny injured persons the damages they deserve. Let me give you an example from my own experience.
A wonderful, elderly grandmother helped her working, single mother daughter out by providing after school childcare for her grandchildren that her daughter couldn’t otherwise afford. Every day, she would pick up her grandchildren from their rural school and keep them until their daughter got home from work. The grandmother was retired and struggling to make ends meet herself on her meager Social Security benefit. Her advancing arthritis brought on from her own lifetime of hard work made it physically difficult for her to pick up the children but, she didn’t complain because that’s what grandmothers do. I certainly never became a lawyer so I could sue wonderful grandmothers but that’s what I was forced to do when her automobile insurance company offered a ridiculously low a settlement my client would agree to accept.
I knew I was in deep trouble with the jury when the practiced insurance company lawyer feigned compassion as the grandmother he’d dragged into court slowly hobbled up to the witness stand on her shaky cane. It broke the juror’s hearts just like the insurance company lawyer intended. He plucked their heart strings playing a symphony of sympathy. After plowing the fertile ground about her being on her way to pick up her grandchildren from their school, he revealed his claimed reason for the collision. It seems that gap between the hood of your car and its windshield, where the wiper blades retreat when not in use, and where leaves collect and get soggy is a perfect habitat for the Lowcountry’s ubiquitous singing tree frogs. As grandmother was driving down the State Road leading to the school, following my client who was getting ready to turn into his driveway, a tree frog jumped out of the gap right onto the center of her driver’s side windshield. The look on the terrified little frog’s face as he hung on for dear life startled grandmother. She froze not wanting the smear poor creature with her windshield wipers just as my client was starting his turn. She tried to stop but her car caught the right rear of my client’s car and pushed him into the ditch that ran along the edge of the highway for drainage.
I don’t blame the jury for their verdict, it was understandable. I was disappointed for my client who’d had prior lumbar spine surgery and suffered a significant aggravation of his sciatica that didn’t settle back down until after a series of rather expensive epidural steroid injections. Fortunately he understood their verdict wasn’t my fault. He was a very nice man who felt sorry for the grandmother too. The insurance company lawyer probably laughed about the verdict all the way back to his office.
I can’t help but think, if the jury hadn’t been repeatedly lied to throughout the trial, the result would have been different. My client and I weren’t suing her, we were suing her insurance company that wasn’t elderly, handicapped, and struggling to help her daughter. It was a rich and powerful corporation making huge profits charging exorbitant premiums supposedly to compensate persons injured in wreck cases. It wasn’t the tree frog’s fault, it was the fault of the Rules of Evidence that countenance lying to juries to protect rich and powerful insurance companies.
We don’t recognize the legal maximum res ipsa loquitor, which literally means “the thing speaks for itself,” in South Carolina, but it seems to me it speaks for itself that telling lies is never the way to find truth in a courtroom. I encourage young lawyers still fighting for justice in the courtroom trenches to argue they should be allowed to name automobile liability insurance companies as the real party in interest, to require insurance company lawyers to disclose who they really work for, and explain who will really pay any verdict they return. They’ll need to preserve their exception to the Court’s rulings denying the motions, during the trial, at the directed verdict, and at post-trial motion stages, and raise the issue as part of any appeal. Maybe some young lawyer will make a name for him or her self by striking a blow for truth and justice in the courtroom.
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