When the Washington Post and other news outlets reported that a Virginia patient won $500,000 after his secret cell phone recording during a medical procedure captured an anesthesiologist insulting him and even planning to diagnose a non-existent condition, portions of the recording went viral. Like Alabama, Virginia law allows the use of recordings as courtroom evidence as long as one party permits it.
Used in front of a jury, that recording provided powerful evidence in court. Presented in front of a judge (known as a bench trial), however, a case like this one might have different results.
Plaintiffs in personal injury cases have a choice between jury and bench trials and many case details go into deciding which type of trial offers the most benefits. Each Tuscaloosa injury attorney at our firm carefully assesses those details before making recommendations to our clients.
Surprisingly, studies show that judges agree with jury decisions on liability as much as 80 percent of the time. However, while judges may award larger damages in about 40 percent of cases, they favor smaller awards in over 50 percent of cases. One study indicated that the differences may be due to judges’ lower susceptibility to two specific cognitive illusions:
• Framing, which involves treating economic gains differently than losses, even though their value is actually equal
• Representativeness, in which a reduced value is placed on background statistical information or base rates that are relevant to the case
Additionally, even though judges provide juries with specific legal instructions prior to deliberation, juries are swayed by sympathetic considerations, which tend to make them more generous when they find in favor of an injury victim’s claim.
In the case of the secret recording, a judge might have seen the recording as the Class A misdemeanor of eavesdropping since the patient was not technically a participant in the conversation. Even if the recording was permitted for use as evidence, this knowledge might have colored a judge’s decision when deciding the value of the award.
Courtroom trials are time-consuming and stressful, particularly for individuals who already suffered significant injuries. This is just one of many reasons why most personal injury lawsuits are settled out of court. Still, personal injury lawyers may recommend taking a case to court for some situations, such as when someone’s negligence results in major economic losses for a victim who becomes permanently disabled.
The final choice between settling versus court — and bench versus jury trials — belongs to the injury victim. It is vital to seek advice from Alabama injury lawyers who have extensive experience in assessing the pros and cons of all decisions and the communication skills needed to clearly educate their clients.
"I have been friends with Dell Cross since we were roommates at UA Law and have had the pleasure of conferring with Cross & Smith, LLC in a professional capacity for many years. As a law office which specializes in domestic relations and family law matters, it is imperative that my office maintain a consistent client referral relationship with a law firm which can effectively address personal injury matters brought to us by our clients."
Mark Sterling Gober