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The Rights of Personal Injury Victims to Attend Their Trial & Preventing Unfair Bias

November 30, 2013

Judges have a broad array of tools that they can employ rather than excluding the plaintiff from his or her personal injury trial. If evidence is more prejudicial in playing to the sympathy of the jury than what it offers in probative value, it may be excluded. Opening statements and closing arguments also may be restricted. There also are standard jury instructions that may be supplemented when the risk of sympathy is higher than normal. As a final protection, the jury's verdict may be reviewed by the trial court and again on appeal to ensure that it was not the product of bias rather than fact and law.

Despite these alternative safeguards, the right to be present is not absolute. Trial judges have been permitted to exercise their discretion to exclude parties from civil trials under certain circumstances. See Willingham v. Willingham, 192 Ga. 405, 408(2) (15 S.E.2d 514) (1941). A party may forfeit the right to be in court by being disruptive, but this is rare. A civil litigant's right to be present at trial also may be waived or forfeited by a party but not unilaterally by the plaintiff's lawyer alone. Therefore, a court may not arbitrarily exclude a party who desires to be present merely because he is represented by counsel.

The right of an injury victim to attend his or her trial also is not dependent on the degree to which the injury victim is able to participate in the proceedings. Georgia courts have never made it a condition that a party be legally competent or that the party actively participate or pay attention to the proceedings. Even if the plaintiff is not able to comprehend the entire proceedings or to significantly assist counsel, the party might have something to say or add so they have a right to be part of the process that determines their fate. This right is based not on what the party has to offer in court but on what the case will do to the party because it is the party's interests and life that will be directly affected by the outcome of the case.

While the Supreme Court's decision in Kesterman upholds the right of a plaintiff to attend a personal injury trial for the duration of the proceedings, some have raised questions about how the decision should impact the trial tactics of personal injury attorneys. Kerstersen v. Jarrett, 728 S.E.2d 557 (2012) 291 Ga. 380 (ruling that the plaintiff could not be excluded from her own trial simply because her physical and mental condition may evoke sympathy). In medical malpractice cases like Kesterman, where juror sympathy often aligns with doctors who win much of the time, the presence of the plaintiff might offset the bias in favor of doctors. Some speculate that the presence of a plaintiff should be limited in duration to brief intervals to maintain the emotional impact on the jury. The theory is that the jury may become desensitized to the plaintiff's condition if the plaintiff is present for the duration of the entire trial.

While tactical decisions regarding such issues may seem indelicate, the reality is that the visceral impact of horrific injuries and disfigurement can have a substantial impact on the financial recovery that will be essential to providing the highest quality of life following life-altering injuries. Experienced personal injury attorneys must carefully weigh decisions about such issues to build the most persuasive presentation of the facts and evidence on behalf of an injury victim.

Contact the Atlanta Personal Injury Attorneys at Montlick and Associates Now!

Our Atlanta personal injury attorneys are committed to effectively communicating to the judge and/or jury the devastating effects of a defendant's conduct on the quality of life of our clients. If you or your family member is injured or a loved one dies because of the negligent, reckless or intentional acts of another, our Georgia personal injury lawyers at Montlick and Associates have been helping injury victims and their families for over thirty years throughout all of Georgia and the Southeast, including but not limited to Albany, Athens, Atlanta, Augusta, Columbus, Gainesville, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins and all smaller cities and rural areas in the state.

No matter where you are located our attorneys are just a phone call away, and we will even come to you. Call us 24 hours a day/7 days a week for your Free Consultation at 1-800-LAW-NEED (1-800-529-6333). You can also visit us online at and use our Free Case Evaluation Form or 24-hour Live Online Chat.

Category: Personal Injury

Please Note:
All information provided by our blogs is general in nature and should not be relied upon as legal advice. Consult a Montlick attorney for details about your unique situation.