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Tuesday, August 09, 2016

Attorney advertising as jury tampering

While at Amelia Island for SEALS over the weekend, we caught a TV ad for a personal-injury lawyer. The entire ad focused on the legal rule prohibiting juries in personal injury cases (the ad focused on automobile accidents) from learning that the defendant has liability insurance. This is a common law rule in Florida, codified in the Federal Rules. The ad argues that juries are too sympathetic to, and thus unwilling to find against, defendants in these cases, erroneously believing, because they lack this one piece of information, that finding for the plaintiff will impose crippling liability on a powerless individual. The ad announces that almost all drivers have insurance and will not bear the cost of civil judgment, which instead will be borne by the big, bad insurance company. And it urges viewers to "spread the word" about the state of the law. Presumably, although only implicitly, these are cases in which the evidence otherwise shows that the defendant should be liable, and the plaintiff loses because of this misplaces sympathy. Of course, it ignores the flipside concern--a jury imposing liability against a defendant despite the evidence, believing an adverse verdict is "costless" to the insured defendant.

I am being tongue-in-cheek about calling the ad jury tampering. I believe it paints with too broad a brush, unconnected to any case, geographic, or potential juror (although I welcome the correction if jury tampering can be defined more broadly). Nevertheless, we can wonder about the ethics of an attorney "spreading the word" to the public about something they are not supposed to know as jurors and encouraging them (even if not explicitly) to use something they are not supposed to use as jurors.

This reminds me of a controversy that cropped up in the '90s, where people in parking lot or sidewalks outside courthouses gave potential and actual jurors information about the power of nullification.

Posted by Howard Wasserman on August 9, 2016 at 04:01 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Howard -- I also saw this ad when I was at SEALS and it caught my attention too. I'm not sure it's such a stretch to call it jury tampering. As I've written about here, I'm working on a paper that addresses a related topic: http://prawfsblawg.blogs.com/prawfsblawg/2015/06/judicial-specialization-patent-cases-and-juries.html. There was also a good article published in the Nebraska Law Review about a decade ago titled "Selling Influence: Using Advertising to Prejudice the Jury Pool."

Posted by: Megan La Belle | Aug 14, 2016 8:26:18 PM

In the one civil jury (slip and fall-tenant suing mom and pop landlord) I served on, someone asked once we were in the jury room if the owner or an insurance company was paying for the defense. If my memory serves me right, she was the only member who voted for the plaintiff.

Posted by: PaulB | Aug 9, 2016 5:23:20 PM

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