Risks of Taking Your Case to Trial

When Trials Become Train Wrecks 

We always advise our clients on the advantages and disadvantages of settling a case before proceeding to trial, because an unfavorable day in court can have extremely negative outcomes. Even with a capable legal representative and strong evidence, trials inherently involve risks. 

Many things can turn a canine-injury-related trial into a “train wreck.”  These include:

• 1. The Defendant “cleans up well” in court and comes across as sympathetic, winning over the jury.    
  2. A juror could dislike the plaintiff greatly for something she said (or didn’t say) in her testimony, rubbing one or more jurors the wrong way, unexpectedly.    
  3. The court can misinterpret the standard for PA Dog Law and incorrectly instruct the jury.  
  4. Your counsel — who is juggling several balls at once at trial, so to speak — may fail to raise an immediate objection to something at trial, resulting in a permanent waiver of the issue on appeal.  

One or two of these things happening in a trial might be expected, but what are the odds of all four occurring in a single trial? 

That’s exactly what happened in Sladek, discussed below.  

 

Sladek v. Andrew Canale, No. 3153 EDA 2023 (Pa. Superior Court)  

In Sladek, the plaintiff had good reason to expect a big verdict for her canine-related injuries. She had some great facts: 

• • Her hand injury resulted from the teeth of an animal owned by the Defendant.   
  • It was her right hand that suffering damage, and she was right hand dominant, thus affecting her ability to function in life and type at work. 
  • She required sutures to close the wound, followed by hand surgery performed by Dr. Adam Strohl.
  • She regained mobility in her hand, but continued to suffer loss of function, according to the surgeon. 
  • The permanent scar made her very self-conscious. 
  • The Defendant was not only the dog owner, but also the plaintiff’s landlord, having a duty to make safe the premises where the injury occurred, 
  • The defendant had admitted that his dog had bitten someone else previously.  

There should have been a substantial verdict, right? 

Nope. 

The jury awarded the Plaintiff $6,000, total, which was less than the cost of surgery and expert testimony costs at trial, effectively a big loss, which left the Plaintiff with nothing for pain, suffering, or disfigurement.   

 

So What Went Wrong? 

In a word:  everything.  

1. Comparative Negligence 

First, the defense was able to show that the Plaintiff had been comparatively negligent, which reduced the award from $10,000 to $6,000. For example, the defense showed how the Plaintiff could have avoided the dog, allegedly, which had been tethered at the time, allegedly. The Plaintiff could have used a different entrance to the property to avoid the animal, allegedly.    

2. Sympathetic Defendant 

Evidence of the Defendant’s liability insurance is not admissible at trial, which allows a jury to think a defendant must pay the verdict out of pocket, when his insurance will pay it. Plus, a jury has great discretion whether to award money for “pain and suffering” and the jury will hesitate to award anything, if the defendant appears sympathetic.  Thus, from the first minute of trial, defense counsel will get to work making their client seem as “real,” and “human” — and sympathetic — as possible.  

Here, at trial, the Defendant’s team had smartly pointed out that the Defendant had driven the Plaintiff to the hospital following her injury, which elicits sympathy. In fact, this is just one of many ways the defense can appear sympathetic at trial, which can drive down a verdict.    

3. Juror Bias Against the Plaintiff

In this case, at least one juror strongly disliked the Plaintiff, based on how she came across in her testimony.  In fact, the juror took to social media and called the Plaintiff a “bi*ch.” 

But why?

Perhaps there was a good reason.  For example, maybe she had come across as unappreciative of the Defendant’s deed of driving her to the hospital.  Or maybe the juror was totally unreasonable in forming his negative opinion.  

We’ll never know.  In Pennsylvania state and federal court, a judge may not regard a juror’s emotional mindset, or evaluate his proclivity for irrational anger, as a basis to second-guess a verdict. In fact, evidence of a juror’s extreme and irrational feelings on the jury is inadmissible. See Pa.R.E. 606(b); see also Pratt, 866 A.2d at 319.

4. Failure to Raise Timely Objections 

Here, the judge had erroneously instructed the jury as to PA’s Dog Law, allegedly. However, PA’s Supreme Court has noted that in order “to preserve for appellate review an issue concerning the correctness of a trial court’s charge to the jury, the complaining party must … make a timely, specific objection to the charge given.” Jones v. Ott, 191 A.3d 782, 784 (Pa. 2018).

Here, the trial record failed to contain any mention of the Plaintiff objecting to the court’s allegedly erroneous jury instruction. Thus, on appeal, the superior court noted: 

Appellant’s counsel’s misunderstanding of the procedure to preserve an objection to jury instructions is not a basis to excuse the failure to object. See Fiorentino, 693 A.2d at 213; see also Parkway Corp., 861 A.2d at 269. Therefore, Appellant has waived these claims and is not entitled to relief.

In practice, this can be tricky.  A trial can have many “moving parts,” demanding an attorney’s attention away from lodging every possible objection in real time. Plus, judges try to go “off the record” as often as possible,  largely to narrow the range of appealable issues.  In fact, a judge may ask the court reporter (the only person recording objections) to sit outside of the judge’s chambers when important discussions are taking place in chambers.  For this reason, you must demand that the court reporter be present during every ruling.   

Let’s Get Started! 

Contact us for a free consultation to learn more. 

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