Abnormal Use interviewed University of Maine School of Law professor Jennifer B. Wriggins in a blog post last week. Professor Wriggins is best known for her book “The Measure of Injury: Race, Gender, and Tort Law” which talks about how tort law does not provide full redress for injuries to women.
Professor Wriggins was asked by Abnormal Use, “What rule or concept in modern torts or products liability jurisprudence do you believe is the most outdated, and why?”
Now that is a really good question. My first answer would probably be contributory negligence, which is also touched on in this interview. Professor Wriggins said she thought the most antiquated idea might be not telling the jury of the existence of liability insurance, even though the likelihood is that most of them know or suspect the defendant has insurance:
One rule that strikes me as possibly outdated is the rule that juries are not allowed to learn about liability insurance policies. Even when a case involves an auto accident, and auto insurance is mandatory in a state (as it is in almost all states), so that jurors who are car-owners (probably most jurors) know that there is likely to be insurance, jurors are not supposed to know about insurance. I understand that it is important for the liability and damages issues not to be affected by the presence or absence of insurance, but I think it is very likely that jurors think about insurance anyway. I would want to think about this more before advocating it, but perhaps we should just give jurors the insurance information and tell them it should be kept separate from the liability and damages determinations. If they are hypothesizing about insurance and taking it into account anyway, then giving them accurate information should not hurt the process. I can see both sides of this, but I think we are probably deluding ourselves if we pretend jurors don’t know and aren’t thinking about the existence of liability insurance.
Jurors’ first question after a trial is often, “What’s the deal, didn’t this guy have insurance?” Jurors expect people to have insurance, but they also expect information. If after a weeklong trial no one has mentioned insurance, jurors can easily begin to conclude that there is something special about the case and the defendant might not have insurance.
I think I agree with Professor Wriggins’ premise – which even she does not seem 100% sure about – but I have not given it a lot of thought. Why? The fact that we don’t tell juries about insurance always seemed like my poor vertical leap: something I accepted and never thought would change.