Massachusetts Personal Injury Trials

Having practiced law in the courts of Massachusetts since 1985, I feel that I have some perspective on the trends. Unfortunately, it’s not good for victims of personal injury in Massachusetts. In a recent Massachusetts Lawyer’s Weekly article some statistics were pointed out.

The statistics show a statewide success rate of 26% in the 700 personal injury cases tried to a verdict throughout the Commonwealth. The average masks the wide variances, which include very grim numbers for Norfolk County personal injuries. For example, in 2009, only 5 out of 35 personal injury trials were plaintiff verdicts there. (Only the Cape and Islands had a lower rate.) In Essex County, the golden spot for personal injury cases, the success rate for plaintiffs was 36%.
One Judge, Patrick F. Brady, who was a defense trial attorney prior to being appointed to the bench, does his own calculations. According to Judge Brady, from 1993 to 2010, only 16 out of 151 plaintiffs have “won” more than the insurance company offer prior to trial. Broken down, there were 7 of 69 in Norfolk, where Brady presided, and, in Plymouth County 49 of 52 were defense verdicts.
But what are the reasons? The major academic reason cited by trial lawyers is that Massachusetts does not allow jury voir dire. That is, in selecting a jury a judge asks a series of basic questions and the jury is selected. In other states, and in some courtrooms in Massachusetts, the selection process is vastly more extensive, weeding out jurors with bias.
While I fully support the struggle to get Massachusetts judges to allow full jury voir dire, it’s not so clear to me that this would resolve the problem. When I look at a jury, I’m always encouraged by how eager they seem to do their job correctly.
I think it’s subtler than that. The media has done a brilliant job exaggerating plaintiff victories. The McDonalds coffee burn case, for example. Further, some politicians have convinced folks that their insurance premiums would go up if they awarded monies in a Massachusetts car accident. The insurance industry has spent fortunes convincing folks that we need tort reform. It’s ironic that the capitalists want socialism with respect to the courts!
Then there is the economy. When a juror is struggling to pay for his mortgage, or her school loan, and the plaintiff comes in all dressed up and with a fancy lawyer, it seems they just can’t pull the trigger for damages as much as they used to. Besides, they are thinking about their insurance bill going up if they award damages.
We don’t try medical malpractice cases, but the numbers are even grimmer for plaintiff victims of medical malpractice at trial; they win less than 10% of the time.
This is not a sad story, however. My experience is that there are only two types of cases that go to trial: bad ones and phenomenal ones where the victim has an opportunity to get a huge verdict. Those cases skew the statistics. Insurance companies tend to make reasonable offers of settlement on good cases. Their reasonableness is in lower dollar figures than a decade ago, however. But if a Massachusetts personal injury case is aggressively pursued, most insurance companies will, eventually, take the case seriously.