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By the numbers: Who really wins jury trials

Wednesday, June 17, 2009
Chicago Daily Law Bulletin
by Pat Milhizer

When it comes to jury trials in Cook County, a car crash is more likely to pay than a slip-and-fall.

And in medical malpractice cases, defendants won four out of every five jury trials last year.

The Chicago Daily Law Bulletin recently reviewed statistics on Law Division jury verdicts from 2006 to 2008, and the total rulings for both sides were close to equal.

In that three-year period, plaintiffs won 634 cases compared to 647 for defendants in disputes that involved injuries, contracts, consumer fraud, warranty breaches and other matters.

Though the overall numbers are close, several of the categories tend to either favor a plaintiff or defendant.

Take personal injury lawsuits, for example.

In those cases, from 2006 to 2008, juries in either the Richard J. Daley Center or the suburban courthouses ruled in favor of plaintiffs in 405, or 63 percent, of the trials. In each of those years, the plaintiff win percentage hovered steadily between 62 and 64 percent. And the percentage was even a few points higher in cases involving car accidents.

However, when the defendants are doctors or hospitals, the plaintiff win percentage plummets.

Juries ruled for defendants in 71 percent — or 248 of 347 — of the medical malpractice suits in that same three-year period, according to the figures compiled by the circuit clerk's office. And comparing 2007 to 2008, the plaintiff win percentage in medical malpractice verdicts fell from 39 to 18 percent.

Speculating on the reasons for the higher number of defense verdicts, Nicholas J. Motherway of Motherway & Napleton LLP pointed to media polls that address how various occupations are viewed by the public.

"Used car salesman, lawyers and newspaper reporters are way down. And doctors are way up there. As a class, they're held in high esteem, so juries are reluctant to hold against them," said Motherway, who represents plaintiffs.

"And there's medical insurance industry propaganda about frivolous lawsuits" driving up the cost of health care, Motherway said. "The idea resonates with some people."

As a medical malpractice defense lawyer, Catherine Coyne Reiter of HeplerBroom LLC said that she typically comes across about five potential jurors in a pool of 30 who are aware of the debate over malpractice caps.

But she said that the reason defendants win the majority of the cases is that the doctors come off as well-trained, and many cases involve judgment calls such as whether a particular medical test should have been ordered.

"Often the cases involve situations in which the plaintiff is sick, and sometimes very sick, and juries understand that outcomes can't be guaranteed," Reiter said.

Ultimately, juries make decisions based on the testimony of the defendant doctors or nurses, Reiter said.

"And if that person on the witness stand comes across as a reasonable person that the jury would feel comfortable going to as their own doctor, that is a big part on the road to a defense verdict," Reiter said.

In lawsuits that involve land owners facing governmental bodies trying to acquire their property or premises liability actions, juries are likely to rule in favor of the defendants.

Local governments took just three eminent domain cases to jury trial between 2006 and 2008, and they lost all of them. In addition, property owners successfully defended against 91 of the 146 premises liability jury trials in the three-year period, or about 62 percent.

During jury selection for premises liability cases, also known as slip-and-falls, attorneys will commonly ask whether the potential jurors are homeowners or landlords.

"When I have a premises case, and I have a homeowner there, I say this person is going to place themselves in the shoes of the defendant," said Stephen D. Phillips of Phillips Law Offices, who has tried at least three premises liability cases in front of juries.

"And then there's a fair amount of [jurors] who say, [the plaintiff] was clumsy. He should have noticed it; it's his own fault," Phillips said.

Jury instructions in slip-and-fall cases also make matters more challenging for plaintiffs because there are six conditions that must be proved in order to receive a favorable verdict, Phillips said. And if the jury finds that the plaintiff is more than 50 percent at fault, there is no award.

"Let's say I prove all six [conditions], but if the jury says, 'We think the plaintiff was 60 percent at fault,' … we lose. So you can win the battle and lose the war," Phillips said.

Even though defendants have won more premises liability cases from 2006 to 2008, plaintiffs have somewhat closed the gap. Plaintiffs won 33 percent of the slip-and-fall cases in 2006; 41 percent in 2007; and 39 percent last year.

Jonathan W. Goken, a Johnson & Bell Ltd. attorney whose practice includes premises liability defense, said that in the current economy, jurors are becoming more money-conscious.

"Everyone would admit in premises cases specifically, you have a large degree of comparative fault and contributive negligence on the part of the plaintiffs. With premises cases by and large, you're talking about people that are injured on others' properties. In today's economic times, people are less inclined to be forgiving of plaintiffs who are negligent themselves," Goken said.

When it comes to product liability cases, very few went before juries. There were six in 2006, five in 2007, and four last year. Of those, plaintiffs won four, and defendants won 11.

Part of the reason that so few product liability lawsuits go to jury trials is that the cases involve a lot of out-of-pocket expenses for plaintiff lawyers, who are trying to prove an engineering defect, said Bruce R. Pfaff of Pfaff & Gill Ltd.

Pfaff said that he knows plenty of plaintiff lawyers at highly respected law firms who don't take product liability lawsuits.

"It's a high-risk case. You really are going to spend six figures-plus. And unless you have experience taking and beating those odds, you're not going to be apt to do it," Pfaff said.

The results in contract disputes ran close to even, with plaintiffs winning 16 of 26 cases in 2006; defendants winning 10 of 17 in 2007; and defendants securing 11 of 20 in 2008.

When the personal injury lawsuit involved a railroad company, 15 plaintiffs secured a favorable verdict compared to just one defendant in those three years.

Legal malpractice claims were evenly split. Ten such cases went to jury trials from 2006 to 2008; and five juries ruled in favor of the plaintiffs, and five issued verdicts for the defendants.

Juries only heard four consumer fraud cases in the three-year period, and plaintiffs won all of them.

Of the three libel cases that went to juries, plaintiffs won two. There also were three retaliatory discharge jury trials from 2006 to 2008, and defendants won two of those.

If the total numbers for jury verdicts reveal anything, it's that relatively few lawsuits end in jury verdicts.

Consider that last year the Law Division had 14,713 new filings, and 17,548 pending jury cases — numbers that are fairly consistent with the last several years. And in the three-year period used for this review of Law Division jury verdicts, the number of verdicts each year ranged from 402 to 475.

Circuit Judge William D. Maddux, presiding judge of the Law Division, said a rough calculation is that less than 3 percent of the total cases result in a jury verdict. The rest are dismissed, settled or transferred to another venue.

"I'd say the vast majority are settled outright," Maddux said.

Discussing the nearly 50-50 split of jury verdicts between plaintiffs and defendants from 2006 to 2008, Maddux mentioned cases in which plaintiffs win the verdict, but they don't get the compensation that they requested.

"So your statistics will show 50-50, but if you put those in the lost category, " Maddux said, "it's more heavily weighted toward the defense."

pmilhizer@lbpc.com



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