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
