• Joe McCoy

Who Should Pay, and Who Should Decide How Much?

I’m spending most of my weekends getting ready for a civil jury trial scheduled to take place in April 2021. It will be my first trial post-Covid, and I’m honored and privileged to represent and advocate for my injured client against a company whose insurance company has been unwilling to offer my client a fair settlement.


As I prepare for trial, my appreciation for our American civil justice system grows. In about a month, eight citizens will be chosen to decide a dispute. These citizens will undoubtedly come from diverse backgrounds, differing educational levels, and could be male, female, black, white, 20 years old, or 90 years old. The common thread uniting these people will be that they have no stake in the outcome, they don’t know any of the parties, and their decision will be based on the evidence presented to them over the two-day trial. My heart beats faster just thinking about this….


What a beautiful thing? With all the different political and philosophical views that make up our society, I’m returning to a basic question—perhaps a foundational question of our civil justice system:


When a person is injured by another person or company’s wrongdoing, who should pay for the harm?


I can think of three options:


1. The injured party;

2. Society at large; or

3. The wrongdoer.


What do you think? I’ll wait….


My gut tells me you lean option 3—I sure do. And I believe that most Americans say option 3. I’m certainly confident the eight jurors who are chosen for the upcoming trial will say option 3. Let’s dissect the options:


1. The injured party herself should pay for the harm


I can’t imagine too many people hold this view—certainly not anyone who has been seriously injured by another’s carelessness. It just doesn’t jive with our concept of justice—of right and wrong. When someone does something wrong, there are consequences. This concept goes back to ancient times, and while our methods of dolling out consequences have evolved, not leaving the innocent victim out to dry is as old as Moses—I think he was pretty old….


2. Society at large should pay for the harm


Socialism? Perhaps we’ve crept closer to this sort of system in some ways through programs like Medicaid, Medicare, Social Security, or even Workers Compensation. If we go with this option, however, we’ve fundamentally strayed from the American concept of justice. This country was founded on principals of accountability, justice, and fairness. While the country hasn’t always been true to those principals (see slavery, Civil Rights movement, women not being able to vote, etc.), that doesn’t mean that our founders didn’t get some things right: one of those things, in my opinion, was the concept that public taxes shouldn’t be used to bail out people or companies that do something wrong and injure someone else.


3. The wrongdoer should pay for the harm


Here it is. This is American civil justice. This is our tort system. The wrongdoer is responsible for making the injured victim whole. I’m hopeful that whether you’re a republican, democrat, independent, or a proponent of some other political party, you choose option 3.


If you’re still with me, preparing for this trial brings up another question:


Who should decide how much the wrongdoer should pay the injured victim?


For simplicity’s sake, here are three options:


1. The wrongdoer;

2. Bureaucrats; or

3. Everyday citizens unconnected with the underlying controversy.


You see where I’m going with this? I resoundingly reject options 1 and 2. The person who caused the injury can’t be the one to decide the amount of harm (unless it is in conjunction with the injured person—this is called a settlement), nor do I want elected officials deciding how much a person’s life is worth. I want this decision in the hands of everyday people—people that bring their humanity, every day experiences, and common sense with them to the court house. And our civil justice system agrees. The 7th amendment provides as follows:


In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


Ohio’s Constitution also protects the right to a jury trial, explaining that the “right of trial by jury shall be INVIOLATE.” Inviolate means “free or safe from injury or violation.” I looked it up.


This is beautiful…music to my ears. How fantastic is it that our civil justice system puts the pauper on an equal footing as the corporate CEO? How? The jury trial. Giving the power to everyday people to decide when someone did something wrong, and what the remedy should be, protects the integrity of our justice system. The jury trial is the great equalizer.


After this little thought exercise, I’ll continue to prepare for trial—with even greater motivation. I’m honored to present my client’s case to a jury of her peers, and I trust that they will bring back a verdict that is fair, impartial, and does honor to our civil justice system.


If you have questions about anything in this post, give me a call. I’m happy to listen, and I enjoy discussing the merits of our American civil justice system.

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