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The Battered Personal Injury Plaintiff

In 1997, I opened my own law firm after spending many years in a downtown Boston business litigation firm. Unlike many tort(personal injury) lawyers, I have always litigated and tried a wide variety of cases, including complex business cases, criminal cases, divorce and probate cases, zoning cases and personal injury cases. I have always considered myself a trial lawyer (a nasty moniker according to many) that was willing to look at any worthy cause and educate myself, if necessary, to be able to handle a given case, even in a new area of practice.

I didn’t need to be reminded, but an article in this weeks Massachusetts Lawyers Weekly reaffirmed my view regarding the importance of diversity in my law practice. The article is entitled “Odds against tort plaintiffs in Massachusetts”. The article described the percentage of plaintiffs’ verdicts in Superior Court in 2009, the land of jury trials. In Barnstable county, only 11% of verdicts were for plaintiffs, and in Norfolk (long known as a plaintiff minefield), only 14% of verdicts were for plaintiffs. The remaining percentages were Plymouth 22%, Bristol 32%, Middlesex 27%, Essex 36% (where I have had one of my most gratifying plaintiff verdicts), Worcester 23%, Hampden 29% and Berkshire 33%. In medical negligence cases that went to verdict, there were only11 plaintiff verdicts out of 95 trials.

Does this mean that all plaintiffs are “malingerers” or is there more at play here? In 28 years, I have never taken a case for a client that was not legitimately injured or did not have a viable claim for damages. However, there is also no doubt that various forms of insurance company propaganda ( i.e they don’t make money because of all the fraudulent plaintiffs’ and BAD trial lawyers out there), and media (the McDonald’s coffee case) have poisoned the jury pool, so to speak. Also, the fact that in Massachusetts, lawyers do not have the opportunity to question prospective jurors (voir dire) about their biases puts us in front of juries blind to any bias or prejudice that may not have been disclosed to the court during jury selection.

More trial judges are beginning to grant requests by lawyers to engage in limited forms of voir dire. Perhaps articles such as the one mentioned above will prompt more judges to grant these requests. As I often say in closing arguments, my injured clients are not looking for sympathy; only justice. In addition, we would be thrilled with nothing more than a level playing field. Of course, this will not change overnight, which is why I always tell clients that a fair settlement after a well prepared case is usually the best result.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans