Personal injury attorney Ben Schwartz explains the three things about Delaware that make it different from any other state and make it more challenging from any other state for the plaintiff’s personal injury lawyers and for the plaintiff’s who are going to trial seeking fair, reasonable compensation for their injuries after a car accident.
Hi, I’m Attorney Ben Schwartz,
Today, we are going to do a video for Greg in Georgia. Greg wrote in and he said, “can you do a video on what makes Delaware a unique state to fight insurance companies in car accident cases?” Well Greg, thanks very much for the question. I think it is a very insightful question because you knew to ask me what makes fighting insurance companies in car accident cases rather than fighting defendant drivers in car accident cases. So, you know something more than the average individual, you know that in car accident cases we, plaintiff’s personal injury lawyers, spend our time fighting with the insurance companies.
The insurance companies are those who pay the judgment., who pay the settlement, who funds the defense, who hire the defense lawyers to defend the at-fault drivers who cause the accidents. Very insightful of you. But your question is what makes Delaware unique when it comes to handling these types of car accident personal injury cases. I want to tell you, I think there are three things about Delaware that make it different from any other state and make it more challenging from any other state for the plaintiff’s personal injury lawyers and for the plaintiff’s who are going to trial seeking fair, reasonable compensation for their injuries after a car accident.
The first thing is, we have a unanimous 12-person jury requirement in civil cases. That means that when you file a lawsuit, you are going to find out the defendant, the insurance company that is funding the case, is going to demand a jury trial with a jury of 12 people. Not 6 people, not 8 people, 12 people. And, in order to win the case, the plaintiff – the injured party who is pursuing justice – has to get all 12 people to agree that the plaintiff should win and agree as to how much they should win. That is different from most other states where maybe you only have to have 5 out of 6 jurors to agree on the verdict or to agree on liability.
The second thing is, we do not have what is called voir dire. Voir dire is when we get to ask our potential jurors questions to find out if they have a bias, to find out were a member of the Ku Klux Klan in 1975, to find out if there some reasons why you would not be able to be fair and impartial. Instead of the lawyers asking questions of the potential jurors, we can ask the judge to ask questions of the potential juror. The conversation usually goes like this: “Your Honor, I would like you to ask the jury, ask the voir dire, ask the pool of potential jurors a question such as, is there any reason why you would not be able to find in favor of the plaintiff and award the plaintiff money damages if you find that reasonable compensation should be awarded?” Now, the judge usually has something to say like, “Well Mr. Schwartz, I’m going to ask the jury if they can be fair and impartial, isn’t that good enough? Why is that not good enough? I don’t want to ask a lot of questions because then we are going to have a lot of jurors who have questions about our questions, and we are going to spend all day picking a jury.”
In Delaware when you pick a jury, the judge asks a few questions, not a lot of questions. The lawyers do not get to ask questions. The lawyers are prevented from having a conversation with the potential jury pool. I think that makes it much harder because you don’t know what you are getting. You don’t know who you are getting on the jury. Maybe you are getting someone on the jury that does not like Jewish people. Maybe you are getting someone on the jury that does not like White people, or that does not like Black people, and who is just not going to award compensation for that plaintiff or that lawyer’s client, no matter what, no matter how strong the case is, no matter how righteous the case is. So, you don’t get to weed out the people that really have no business serving on a jury.
The third thing is, in Delaware when I am trying a plaintiff’s personal injury case, and it comes time for closing arguments, I’m going to ask the jury to award my client money compensation that is fair, that is reasonable, to reimburse them for what they have lost, for the damages that they have suffered. I do not get to tell the jury what my opinion is, or what the dollar value of that compensation should be.
So, in other states if I were trying a plaintiff’s personal injury case I might say to the jury, in the last 30 cases that I’ve had like this, the settlements have been in the range of $700,000. But if I am trying the case in Delaware, I don’t get to put a number on it. Maybe that is good, and maybe that is bad. Maybe it is good, I have a friend who recently tried a case and the jury returned a $100-million verdict in favor of the plaintiff. If my friend had been able to stand before the jury and tell them what he was asking them to award his client, would he have said $100-million or would he have said something much lower? Maybe he would have given the jury a number that was lower than what they came up with on their own without any guidance. So, maybe that cuts in favor of the plaintiff. Then again, maybe that cuts against the plaintiff. Maybe it helps the defense. Maybe it helps the insurance companies in car accident personal injury cases.
If I can’t give the jury any guidance on what I think they ought to award they are just shooting fish in a barrel. They have to come up with a number using their own common sense and their own frame of reference, which is going to be difficult. Their frame of reference is going to be, they are going to vary. I am going to have people on that jury who are making $12,000 a year, or who are maybe making $0 a year. I am going to have people on that jury who are making $100,000 a year. Their lens through which they judge the amount of money to give an injured plaintiff is going to vary widely and all 12 of those people have to come up with the same number and be unanimous.
I think Greg, this is a great question. These are the three things that make Delaware a unique state if you are a plaintiff’s personal injury lawyer, or if you are injured in a car accident and you are pursuing justice and you are considering going to trial or you are considering going to a lawyer who may eventually take your case to trial. I appreciate you asking the question. If you are watching this video and you find it informative or if you find it interesting, send me an email and let me know. Give me some positive feedback or leave us a comment in response to the video. If you have a question that you would like me to try to answer in video format on the internet, send me an email and give me your question. Maybe it is something I can do a video about. I’m Ben Schwartz, thanks for watching!