Why Can’t We Talk About Insurance? Florida’s Secret Dirty Word.
Many people do not know that here in Florida “Insurance” is a dirty word. That’s right, the word itself is so taboo in injury cases that courtroom discussions regarding insurance coverage can be an actual minefield. Many people have no idea that if their lawyer so much as mentions the word “insurance” or “coverage” in a courtroom in the presence of a jury that they will not only subject you to a mistrial of your case but will also likely be subjecting themselves to personal sanctions.
Most (if not all) attorneys who handle personal injury cases in the State of Florida do so on a purely contingent basis. What this means is that the attorney does not get paid AT ALL unless they are successful in securing a monetary settlement for their client. What this also means is that it is very unlikely that a personal injury lawyer would pursue a case where there is no reasonable chance of securing a monetary settlement for their client because that means that NO ONE would get paid. Therefore, if a case gets to trial, you can be rest assured that there is most definitely insurance coverage which will cover the damages of the injured party.
So, if there is insurance coverage, then why can’t we talk about it?
Of course, the presence of insurance coverage is an important one, as juries are often afraid to award money if they think that the person will be stuck paying anything personally, especially if the trial falls around Christmas!
People will often hear the justification for the “no mention of insurance rule” as preventing prejudice to a party (i.e., the defendant/insurance company) and/or potentially leading to unjust outcomes. However, the only unjust outcome that likely occurs when the jury does not get to hear the truth about insurance coverage is that the person who was injured does not receive fair compensation for their injuries.
For attorneys practicing in Florida, adhering to the prohibition on mentioning insurance coverage requires strategic planning and effective communication and can be downright frustrating.
Here’s why:
Perception of Limited Compensation: When insurance coverage is off-limits as a topic in court, there is a strong likelihood that jurors will underestimate the defendant’s ability to cover damages, which will result in a much lower, and in many cases, unfair award.
Transparency and Accountability: Knowing the extent of the defendant’s insurance coverage is crucial for the jury in understanding the potential resources available to cover an injured person’s medical expenses, lost wages, and other damages.
Fairness Concerns: The prohibition on mentioning insurance coverage is a shield to defendants for paying for the full and true consequences of their actions. This is especially unfair in cases where the injuries are severe and the need for compensation is great.
The above factors play an important role in whether taking a case to trial is the right decision, as many lawyers know that without an insurance company as a named Defendant, that juries are reluctant to award damages when they believe, even if incorrectly, that they will be assessing a damage award against an individual personally.
So just remember, the next time you are called upon to be on the jury for a civil trial, that just because no one talks about insurance does not mean that there isn’t any. There likely is, we just aren’t allowed to say so.
