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The Rights of Atlanta Personal Injury Victims to Attend Their Trial & the Threat of Jury Bias

February 04, 2014

When insurance companies defend negligent parties in lawsuits involving auto accidents, medical malpractice and other accident claims, the severity of injury will be a major consideration in determining the amount of damages. While the jury is not supposed to use the devastating nature of a plaintiff's injuries in and of itself as a basis for imposing liability to hold "someone" accountable, there is always a risk that the jury will be so unduly moved by horrific injuries that their decision is based on unfair bias rather than the law and facts.

Insurance companies and personal injury defense law firms recognize the visceral impact of observing first-hand the devastating permanent disability and disfigurement caused by their client's negligence. While videos, photographs, medical reports and expert testimony may communicate injuries in a way that it understood in a cognitive way, these types of evidence may have only a modest impact when compared to allowing the jury to observe an injury victim during the trial. This is why many personal injury defendants and their insurance carriers would like to keep plaintiffs with devastating permanent injuries out of the courtroom.

The right of a natural party to be present in the courtroom when his/her case is being tried is deeply rooted in due process of law in both criminal and civil cases. See Wade v. State, 12 Ga. 25, 29 (1852); Helminski v. Ayerst Labs, 766 F.2d 208, 213(III) (6th Cir.1985), cert. denied, 474 U.S. 981 (88 LE2d 339, 106 SC 386) (1985). Most recently in June 2012, the Supreme Court of Georgia upheld this legal principle in Kerstersen v. Jarrett, 728 S.E.2d 557 (2012) 291 Ga. 380. The court ruled that the plaintiff could not be excluded from her own trial simply because her physical and mental condition may evoke sympathy. The case involved a child with spastic quadriplegia due to cerebral palsy, allegedly due to obstetrical malpractice during her birth. Georgia's highest court observed that the Georgia State Constitution guarantees "the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state." Ga. Const. of 1983, Art. I, Sec. I, Par. XII.

All of the parties in a case are entitled to a fair trial, and one element of a fair trial is that decisions by a judge and jury must be based on the evidence and the law rather than bias or sympathy for or prejudice against one party or the other. Concerns about inappropriate jury sympathy are not unusual in litigation, particularly in personal injury cases. However, the Georgia Supreme Court in Kesterson reasoned that this concern is not resolved by excluding parties from the proceedings; instead, trial courts should use jury instructions and other common judicial remedies to ensure that both parties receive a fair trial without infringing on the right of the plaintiff to be present.

Overall, the bottom line is that a jury generally cannot be prevented from observing the permanent impact of your injuries because you have a right to attend your own personal injury trial.

Contact the Atlanta Personal Injury Attorneys at Montlick and Associates For Your Free Consultation!

If you or your family member is injured or a loved one dies because of the negligent, reckless or intentional acts of another, our experienced, and caring and compassionate Atlanta 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 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.