LESSONS FROM LITIGATION: The Big Secret
When we get our driver’s licenses, we enter into a covenant with each. That covenant is that if our driving causes injury to another person, we will be financially responsible to pay for the damages our driving caused. Otherwise, the community is left covering the costs, either through health insurance or other public means. Therefore, in Washington State, we are required to have automobile liability insurance. In this way, we guarantee that we can pay for the damages caused by unsafe driving.
In a trial, the evidence of whether or not the defendant or any party has insurance is not allowed. It is the big secret. A judge will not allow any evidence that may indicate that the defendant driver, whose negligent driving caused damage, had a policy of insurance. Nope, that is a big, open, secret.
When you get hit by someone, who may have been texting or distracted in some way, you will likely exchange information. If they have insurance and a claim is made, you will be contacted by that company’s trained adjuster. This is a person trained by the insurance company to protect the insurance company. He or she will want a “recorded statement” and will likely be recording your phone calls. He or she will try to get you to say you are “okay”. Someone may look at your car and determine how much damage was done. That person will take pictures of the damage and if the car is totaled, someone on behalf of the insurance company will dispose of it. Every word you said in any recorded statement will then be used against you.
Often people come to me after this process, when the insurance company now offers an insulting and paltry sum of money that does not even begin to address the medical bills, the pain, lost wages, and all the other harms caused by the collision. The other driver’s insurance company is firmly in control. And, no one has spoken to the driver who caused the harm, who has really no idea what is going on.
The insurance company may refuse to pay any amount of money that comes close to addressing the harms caused by their insured. As a result, the victim will be forced to file a lawsuit. The insurance company has lawyers and support staff at their disposal, and almost unlimited resources for defending against your claim. The insurance company lawyer will defend the lawsuit and use every statement you made to the insurance adjuster against you. The insurance company may hire expensive experts to say you weren’t harmed in the collision. They will argue that you are just trying to get a “pay day.”
After a long pretrial process, on the day of trial, the jury will never get to hear any of this. Nope. Insurance will not be allowed to be talked about. The insurance adjuster will not be a witness, and the court will make sure that the use of your statement will not tip anyone off that you were talking to an insurance adjuster. The jury will not get to know how much money the insurance company spent to defend against your claim, in order to persuade them you are not harmed. Instead, they will see the poor defendant driver sitting at the defense table looking forlorn, as though the burden of any judgment will be born by him.
That’s the big secret in a civil trial. If it seems unfair it is because it probably is. So, if you question whether or not you need a lawyer to stand for you, think about what is standing against you.