Mickens vs. Misdom – Use of Jury Verdict Review in Personal Injury Cases
Submitted by Personal Injury lawyer, Jeffrey Hark
Use of Jury Verdict Review in Personal Injury Cases
The Appellate Division, while reviewing the party’s arguments and submissions, addressed the use of the New Jersey Law Journal’s “Jury Verdict Review” to persuade the court that the $2.5 million dollar verdict should not shock the conscious of the court. The court commented in a footnote, “neither plaintiff nor defendants cited comparable verdicts until defendants submitted their reply brief. Finding a lack of authentication, the judge refused to consider defendants’ “anecdotal information.” The record on appeal does not disclose the authentication problem. We would note, however, that we are troubled by the use of reports of jury verdicts in the New Jersey Law Journal or other similar publications, or citations to our unpublished opinions, as evidence of comparable jury verdicts. The former are based on hearsay or multiple levels of hearsay. And, in many instances, reports contained in the New Jersey Law Journal’s weekly “Verdict Search” section, are one-sided. See, e.g., 218 N.J.L.J. 1099 (Dec. 22, 2014) (advising that the report of the verdict and the underlying circumstances was “based on information provided by plaintiff’s counsel” and “[d]efense counsel declined to contribute”); 218 N.J.L.J. 31 (Oct. 6, 2014) (same); 216 N.J.L.J. 843 (June 23, 2014) (same); 216 N.J.L.J. 275 (Apr. 28, 2014) (same). The use of unpublished opinions, by Rule 1:36-3, are not precedential and “shall [not] be cited by any court”; we assume that the prohibition on citation also limits a court’s use of unpublished opinions as a source of comparable verdicts.
Jury Verdict Review is used by plaintiff and defense attorneys to publish and publicize their personal injury settlement and trial results. The court’s labeling them as hearsay within hearsay and one-sided unauthenticated anecdotal information appears to be a blow to their persuasiveness to the trial court judges and or the mediation cottage industry.
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