South Carolina juries frequently ask to see the police report that was written in the civil case they’re deciding. They won’t get it. Tune in as Dirk J. Derrick, Esq. breaks down what evidence is inadmissible and why in this conversation with Pearl Carey, on the firm's professional staff.
Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers, and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We'll also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick, I'm the founder of the Derrick Law Firm, and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Pearl Carey (00:41):
Hi, everyone and welcome back to this episode of The Legal Truth. Today we're going to be discussing the truth about what evidence is inadmissible in South Carolina civil trials that may surprise you. Today, I'm here with my co-host Dirk Derrick, and I'm Pearl. And my first question for you, Dirk, is, can the jury hear who has liability insurance in a civil trial?
Dirk Derrick (01:02):
In car wreck cases, whether the defendant has insurance or whether the plaintiff has auto insurance is inadmissible from most cases. There's a slim exception, if one of the issues that the jury has to decide is who owned a vehicle, then you could bring in who insured it. But the general rule is they're not hearing anything about auto insurance. And the purpose of that is to prevent a jury from being biased or for ruling one way or the other based upon who has the insurance to pay the claim. So, they want the jury not to take that into consideration and base their decisions on the facts that they've heard.
Pearl Carey (01:35):
So, what about who hired the defense attorney? Can the jury be told that it's the insurer?
Dirk Derrick (01:40):
No, the jury will never know who hires the attorneys. We find out in these focus groups, people are very unaware of this fact, a lot of times, when we're looking at insurance coverage to pay somebody's damages, you have the liability insurance or the person who caused it. If that person was working for somebody or if there's excess coverage, you have that excess liability layer. Then a lot of times you have underinsured motorist coverage that the plaintiff bought to cover themselves if someone damages them and does not have enough insurance.
(02:09):
A lot of times, we go to trial and the liability insurance has paid everything, they've paid all their coverage, the excess may have paid everything. So we're negotiating with our clients' underinsured motorist coverage to pay the additional damages. If they refuse to pay, by our law, we have to file a lawsuit against the at-fault party and our client's insurance company will hire a lawyer to go sit beside the defendant at trial and try to hold down the damages. So the jury never knows that the person who's sitting beside the defendant was actually hired by our client's insurance company to hold down the amount of money they owed to their own insured.
(02:56):
So when we're in court, that attorney over there may be hired by the liability insurance, the person who caused it, insurance. There may be two lawyers sitting with the defendant, one of them may be the liability insurance attorney, the other one may be the underinsured motorist coverage attorney hired by our client's insurance company. But the jury would never know that. We can't tell the jury, "Hey, the at-fault party's paid. Now we're just trying to collect money from our own insurance company, but they're fighting us. And actually, Joe Blow there was hired by my client's insurance company to hold down the damages." The jury never hears that. Again, that's something that the law doesn't want them to consider when their job is to determine who caused this, was there negligence, and what is a fair compensation for these damages? That's just outside noise.
Pearl Carey (03:41):
Okay. So, can jurors be told where the money is coming from if there's a verdict?
Dirk Derrick (03:45):
No. Same thing, that's kept away from them. When they're calculating actual damages, they're not supposed to take into consideration where the money's coming from. If there's a claim for punitive damages, one of the elements that they can consider is the defendant's ability to pay. So they can look at the defendant's financial capabilities in that situation. They're not supposed to look at the defendant's capabilities for actual damages.
Pearl Carey (04:09):
So, can we hand the jury the police report?
Dirk Derrick (04:12):
No, police reports are something else that every jury thinks they should have and why didn't... They ask, they're talking about it in the jury room, they ask us after the case has been deliberated, "Why didn't we see the police report? They're trying to hide something from us." I say, "No. In South Carolina, police reports are inadmissible by statute. They don't come into the jury." And the reasoning behind that is in those police reports, the officers will make conclusions as far as who they’re going to charge, give a ticket to, and give citations to. And that's based upon the officer making a decision, a conclusion on who he or she thinks was wrong, and that's the jury's job at civil trials. The trooper is not an expert in accident reconstruction, so he doesn't get to make a decision based on what he saw there, his conclusions.
(04:59):
And also, who he gives a ticket to is inadmissible unless the person who got the ticket goes to court and pleads guilty to it. If they don't plead guilty to it, that doesn't come in. The jury gets to make a decision as to whether or not either party did anything wrong without having the officer's conclusions.
(05:16):
What the officer can testify to, most of the time, is what he or she saw when they came to the scene, what they saw with their own eyes. They can testify as to what the plaintiff and the defendant told them. If they're parties to the action, they can testify that, "The plaintiff told me this, the defendant told me this." They can't even testify what witnesses say. You have to go out and get the witnesses yourself and have them testify in the civil case.
Pearl Carey (05:39):
Got it. So the whole point of that kind of evidence being inadmissible is to allow the jury to form their own opinions.
Dirk Derrick (05:45):
Absolutely. The officer does not take the place of the jury, and the officer does not take the place of the attorneys when interviewing independent witnesses to find out what they saw and what they didn't see.
Pearl Carey (05:57):
So, can the defense argue that you weren't wearing your seatbelt in order to reduce fault?
Dirk Derrick (06:01):
No, the jury does not hear about who had seatbelts on. The statute that made it mandatory to wear seatbelts also made it inadmissible at trial. The purpose of making it inadmissible was, if somebody hits someone in a car and they're at fault, you shouldn't fault the person who was injured because they may not have had a seatbelt on after you've done something negligent to cause the wreck. Part of the tort reform that some of the politicians are pushing, they're trying to change that seatbelt rule so that the jury can hear that, who had the seatbelts on, so that a defense can argue that all the damages shouldn't be the responsibility of the defendant.
Pearl Carey (06:40):
So along that same vein, the jury hear if Medicaid or Medicare has already paid some of the bills?
Dirk Derrick (06:46):
No. In South Carolina, when we present bills in court, we present the full bill, and the jury hears what the full amount is. And this is something else that's also every focus group if there's some medical bill issues, all the juries talk about this. "Who paid it? Has it been paid? Does the person have health insurance? Does the person have Medicare, Medicaid?" All of it's inadmissible. What the jury gets to consider is the total amount of the bills, and there's a couple of reasons for it.
(07:14):
First reason is, we are a subrogation state in South Carolina, which means at the end of the case if Medicare, Medicaid, Blue Cross Blue Shield, ERISA plans, if they've paid medical bills and then the plaintiff recovers a recovery, including those medical bills, they want some of their money back or all of their money back. So, you have to turn around and whatever the recovery is for the plaintiff, pay back the medical providers who have paid on those bills.
(07:42):
Another reason it's inadmissible is the collateral source rule. And what that says is if you're responsible and you go out and get health insurance and you pay health insurance premiums every month or every six months for 20 years, and then you get in a wreck and your health insurance that you've paid for has a contract with a hospital and they write off some money, and you don't have a balance as high as someone who doesn't have health insurance, why should you be punished and recover less in the car wreck that someone else caused because you are responsible enough to buy your own health insurance? Those benefits are what you've paid for, the at-fault party shouldn't get the benefit of what you've paid for all those years.
(08:25):
North Carolina, they can tell the jury what the plaintiff has to pay for. How this works is, the civil justice system is always being attacked. The civil justice system is always being influenced by politicians and by the insurance industry, and they're constantly trying to get laws changed so they can pay less money. Everything, let them know about seatbelts, do away with the collateral source rule, tell the jury that, of this $100,000 bill, there's only $20,000 left to be paid, because the plaintiff had Blue Cross and Blue Shield, they had a contract with the hospital and they paid the majority of it. So they're always trying to find a way to get the jury to give less money, even if that benefit is something you have paid for.
Pearl Carey (09:06):
That's crazy.
Dirk Derrick (09:07):
Yeah, it's unfair. You think about, you’ve got one person who does not have health insurance, has not paid for health insurance. You have somebody else who's paid for the benefit and now they want to give the person who is responsible and pay for the benefit for years less money than the people who don't have health insurance.
Pearl Carey (09:22):
Right, it would almost be like a punishment for the people who have been paying all that time for their health insurance.
Dirk Derrick (09:27):
That's exactly what it would be.
Pearl Carey (09:28):
Can we tell the jury why the lawsuit was filed originally, like the other side was unreasonable?
Dirk Derrick (09:33):
That's an interesting question, that's something, it's inadmissible. The jury will never know why the lawsuit was filed, whether the insurance company made an offer of $50,000 and the plaintiff turned it down. They won't know about any kind of offers made leading up to it, that's inadmissible. Offers made back and forth between the parties, inadmissible. Often, jurors may think that this person filed a lawsuit, they're money hungry. Jurors will never know the offers made before lawsuit's filed, they will never know why it was filed. Was the plaintiff being unreasonable? Was the defendant being unreasonable? They won't know.
(10:10):
It would benefit the plaintiffs if they knew, because a lot of times people think the plaintiff's just money hungry, and then they find out the insurance company made an offer of 1/10th of what the focus group jury thinks the case is worth and they say, "Really? No wonder you filed a lawsuit." And they don't understand that there may be some very low-ball offers being made where you have no choice. You either take 10% or 30% of the value of the case or file a lawsuit. Personally, I would love for them to know the negotiations before trial and I do believe that if they knew it, it may encourage more settlements.
Pearl Carey (10:46):
So, what if the defendant has offered to pay my medical bills? Can I use that to prove fault in my civil case?
Dirk Derrick (10:51):
No, usually that's inadmissible. The reason is, they want to encourage people, they do not want to discourage people from paying on medical bills and stuff if they want to, and they don't want to make that at admission of fault. So usually, that does not come in.
Pearl Carey (11:04):
So, now pivoting away from the insurance conversation, what about prior traffic tickets and things like that? Is that information admissible in a civil case?
Dirk Derrick (11:13):
Most of the time, no. The court wants the jury to decide the case that's in front of the jury. There are some situations, it is admissible. Sometimes during the punitive phase of a DUI wreck, the jury is trying to decide whether or not somebody needs to be punished and the judges will often let the evidence come in, that this is their third DUI, or after this wreck they've had another DUI, because it's admissible to whether or not somebody should be punished and whether or not someone has corrected themselves after the incident. But everyday wreck, no, and that's asked for a lot too. Focus group people want to see both driving records to see if somebody has a habit of driving fast or driving distracted or being a poor driver, and that's inadmissible.
Pearl Carey (11:54):
So, are there any other exceptions where past driving history can come in?
Dirk Derrick (11:57):
There's a situation where you are filing a claim against an employer for the wrongful hiring of a driver or the negligent entrustment of a vehicle to a driver. In those situations, there's an issue as to what the employer, or the person who gave that person the keys, what they knew about the driver before they gave him the keys, or her the keys. And in those cases, the past driving record is admissible.
(12:25):
Think of it in a trucking case, if a trucking company hires somebody who, in the last year, has three speeding tickets and puts them in a big rig and then they go out, speed, and kill somebody, that would be admissible as to whether or not that trucking company was negligent in hiring that person and giving them keys to the truck.
Pearl Carey (12:43):
Got it, okay. So in regards to misconduct, can that ever be used in a civil case to impeach a witness?
Dirk Derrick (12:50):
By the rules, there are situations where it can come in, it's tough to get in. But if someone testifies, they're putting their credibility in front of the jury. And there's a rule that says if they committed a felony in the last 10 years or if they have convictions regarding truthfulness, fraud, things that go to their credibility, that can be admissible to impeach them to let the jury know, they get on the stand, they testify, and they open themselves up for the attorney to impeach them with their dishonest past. But it's very narrow, if it's fraudulent stuff, it’s your best opportunity to get it in, but it is relevant in that situation.
Pearl Carey (13:31):
What would be some examples of fraud that would be considered in order to impeach a witness?
Dirk Derrick (13:36):
Well, embezzlement, writing fraudulent checks, committing insurance fraud, anything like that in the past. If you get on the stand, those are chances that come in to impeach your testimony. There's a rule that allows the judge to weigh the prejudice that that testimony is going to cause versus the probative value. The judge is making that decision on whether or not it is going to, or may bias the jury so bad that the party against whom it's being offered, it may be too bad for the probative value.
(14:06):
I'll give you an example. We had a case that was tried leading up to the case we deposed the defendant, and the defendant when asked about certain medications that he or she may have been on, denied it. We subpoenaed medical records, ER reports, and found that the defendant was on those medications. So, it was our position that the defendant lied under oath and that should be used to impeach her or him at trial. The judge ruled when weighing the prejudice and the probative value, that he was not going to let that come into court, because the subject matter of what they misrepresented that by getting the misrepresentation in, once the jury heard what they misrepresented, that it would bias the jury or it would prejudice the defendant badly, because what they misrepresented would not have been admissible otherwise. So, the judge always has the ability to weigh it.
Pearl Carey (15:04):
So, can emails and other types of correspondence between the plaintiff and an insurance company be admissible evidence in court?
Dirk Derrick (15:10):
A lot of times when you're dealing with the insurance company before, they may admit liability or say "We're not going to contest liability," but then when an action is filed, they've denied the claim for liability, and you can't come back and say, "Ah, you sent me an email." Well, you're not going to contest that. That's usually inadmissible. There’s a lot of stuff with settlement offers going back and forth, communications going back and forth. The law is such that they're trying to get people to talk and work things out and they want them to be open back and forth and to make it admissible would shut down communications. That's the purpose of it.
Pearl Carey (15:46):
So, out of all the things that we've discussed, we've obviously covered a lot of things that are inadmissible. How can we make sure that we're still giving jurors the truth?
Dirk Derrick (15:53):
Well, all these rules are made to get to the truth, but you've got to build the case for the trial that you're in. And a lot of stuff's inadmissible, other people's opinions are inadmissible, hearsay evidence is inadmissible. The law is set up that, when a jury sits there and hears the testimony, and the judge has two main jobs in a courtroom, his or her first job is to prevent the lawyers from giving the jury this admissible evidence. That judge wants, when there's a verdict rendered, that the jury only had the inadmissible evidence so that the case won't be appealed up to the South Carolina Supreme Court or the Court of Appeals and he can come back down with them telling the trial judge, "You made a mistake by letting in inadmissible evidence," because if it's inadmissible it can reverse the case and come back and have to be tried again. So, the judge's first job is to prevent inadmissible evidence to come in.
(16:46):
Second job is to tell the jury what law to apply, because we want juries to decide cases on admissible evidence and on South Carolina law, and not branch out to inadmissible stuff or things outside the law. The whole system is set up to get to the truth and to make the attorneys on both sides bring any necessary witnesses in front of this jury, to give the jury the information that's relevant, that they can make a true decision on whose fault it was, how much of the damages are, without any of this noise that's not relevant because it's not probative to the value of what the jury should be deciding.
Pearl Carey (17:27):
And it seems like a lot of the inadmissible evidence isn't allowed because it can create bias in jurors or it can encourage them to go down rabbit holes, which obviously is something that we don't want.
Dirk Derrick (17:36):
Absolutely, and what we've learned with focus groups about this inadmissible evidence, it is a rabbit hole that jurors will drag other jurors down.
(17:45):
For instance, we've heard this a number of times, "The police report, I wonder why they didn't show us the police report. Police report may have said the plaintiff did something wrong. I bet that's why they didn't show us the police report. They don't show me the police report, I'm not going to rule on this case. I'm not going to giving any money if they didn't show the police report. They didn't tell us about who's paid these medical bills. This person's a teacher, you know she's got health insurance, you know the medical bill is paid. She's not going to owe this money." So there's a lot of that that goes on in the courtroom. And when we watch it in our focus groups, what we learn is we've got to educate the jury the best we can as far as what they can consider and not consider. We can ask judges to give instructions to the jury that they cannot consider insurance, any kind of insurance. That's why he did not let any insurance testimony come in. It's outside of what they can consider, and if they start considering it, they're doing wrong.
Pearl Carey (18:38):
Well, it would be based off of assumptions, so.
Dirk Derrick (18:40):
That's right, and some judges will instruct that and some won't. A lot of times the judges who won't, if the jury comes out with a question and they often come out with a question, "We want to know about insurance," then he'll say, "That is outside of what you can consider." Attorneys who are presenting the case, we've learned you really need to educate the jury when you're standing in front of them. " Here goes what you can consider. This is the oath you've taken. Consider the evidence that the judge allows in. There's stuff that you have not heard, a lot of it is because we can't give it to you. If you consider it, it's an improper verdict, an illegal verdict. You're considering stuff that the law says you can't consider."
(19:15):
And if you're in the jury room and somebody says, "Well, they didn't give us the accident report so I can't do this," or, "They didn't tell me about the insurance or who has insurance, I'm not going to do this," or, "They had health insurance so I'm going to cut down the damages." You've got to be able to say, "That's inadmissible. We did not hear that. We took an oath to decide the case on what we heard and we did not hear that, so that's outside of what we can consider." The focus groups have taught us you have to empower the jury for somebody to stand up in that jury room and say, "We can't consider that," otherwise, someone who has a desired outcome will use things that they do not have to convince other jurors to respond in a certain way.
Pearl Carey (19:58):
Absolutely. So, the inadmissible evidence is obviously important to tell people about so they know which confines to stay in. That makes sense.
(20:05):
Well, thank you so much for being here, Dirk, with me today and discussing The Truth About What Evidence Is Inadmissible In South Carolina in Civil Trials (That May Surprise You)the truth about inadmissible evidence in South Carolina civil trials, what may surprise you. I'm Pearl Carey, and I really hope to see you on our next episode. For more information, you can visit Derricklawfirm.com/thelegaltruth.
Voiceover (20:26):
Thank you for joining us on The Legal Truth podcast. If you have questions that you would like answered on a future episode, please send them to Thelegaltruth@derricklawfirm.com. If you would like to speak to us directly, call us at (843) 248-7486. If you find the podcast valuable, please leave us a five star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast. Located at 901 North Main Street, Conway, South Carolina.
(21:07):
Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user. While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants and the podcast, and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up to date, as laws continue to change.
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In this podcast, you will hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.