The use of Insurance in the Court Room

Written by Andrew Traub

October 26, 2007

Not being a lawyer, you may not be aware that the Texas rules of evidence prohibits a lawyer from mentioning insurance in a case where the insurance company is not the defendant.  In other words, if you find yourself on a jury hearing a claim for medical malpractice or a car accident, you won’t hear about insurance.

Lately, I have begun to question the wisdom of such a rule.

The theory is that the jury should make its decision based on the injury – how much was David hurt in the accident, how much time did he lose from work, what were his medical bills, and what is an appropriate compensation for his pain and suffering?  According to this theory, if the jury knew that Bobby had a $100,000 insurance policy when he drove his car into David’s, then they would be more likely to give him a large reward.  After all, it’s not coming out of Bobby’s pocket.  How much insurance Bobby has is not related to the injuries David suffered.  True…

But is this really a fair rule?  Why then, even when liability is not an issue, is the defendant put in front of the jury by the defense counsel and asked questions about himself to “humanize” him?  The answer is simple, the defense counsel knows that when they put a face to their client, the jury is more likely to return a lower verdict.

In other words, even if Bobby admits he blew the stop sign and rammed into David, he gets to tell the jury how sorry he is, how he has five kids to support, how he just lost his job, and how his wife ran off with his neighbor.  None of this, of course, is related to the injuries David suffered, but the defense gets to put it in front of the jury.  Is that fair?

While most jurors are aware that there is insurance available (I hope), fairness would justify letting them know all the facts.

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