No Evidence of Financial Condition – Motion in Limine
With rare exception, evidence of the defendant’s financial condition has no place in a personal injury trial. The only issues before the jury are 1) whether the defendant was negligent or otherwise at fault, 2) whether said liability caused the plaintiff injuries or damages, and 3) a determination of the plaintiff’s related injuries and value of their damages.
Thus, I always file a motion in limine, preventing any evidence of the defendant’s financial condition. My standard motion in limine on this topic follows:
Defendant, Defendant’s attorney, and Defendant’s witnesses should not be allowed to offer any evidence or argument regarding Defendant’s financial condition or ability to pay for any liability, loss, damage, or injury. Whether a defendant has the ability to pay has no bearing on the issues of the case, and should be excluded from trial. See UCJI 16.01; Brooks v. Bergholm, 256 Or 1, 4-6 (1970); Benton v. Johnson, 45 Or App 959, 963 (1980). Rather, these topics tend to invoke sympathy or bias on the part of the defendant, which the jury is forbidden from taking into consideration in its deliberations. See UCJI 5.02. Moreover, such testimony is irrelevant to the issues of liability, causation, or damages, and should therefore be excluded on this ground as well. OEC 401. It should also be excluded because any probative value is substantially outweighed by the danger of unfair prejudice, since such testimony would tend to arouse the jury’s sympathy. OEC 403.
If Defendant alludes to, or argues, these issues, Plaintiff should be entitled to introduce evidence that Defendant was insured at all times material, including evidence of Defendant’s insurance limits, as well as the fact that it is paying for his/her defense counsel, costs associated with trial, as well as any judgment rendered in this matter. At that point, Defendant’s insured status would not go to the issue of whether or not Defendant acted negligently, the only reason for which it is excluded under OEC 411, but rather on whether he/she can pay damages assessed by the jury.
As you can see, while evidence of the defendant’s ability to pay should be excluded on most grounds, you may want to introduce such evidence if an improper argument or inference is made as to their financial condition. Thus, it is imperative that you obtain this information during discovery, even if liability is denied, and have it handy at the time of trial. You may also be wise to conduct a background search to determine the relative assets of the defendant, in the event they mislead the jury during their improper testimony or argument. Aside from that basis, the issue is wholly irrelevant to the case.
I would also point out that, should this happen, defense counsel may be prompted to simply give the “Ability to Pay” jury instruction, UCJI 16.01, as a curative (aka “admonition” or “correcting”) instruction. UCJI 16.01 reads:The jury is not to consider whether any of the parties in this action has insurance or the ability to pay for any liability, loss, damage, or injury. Whether any party has insurance or the ability to pay has no bearing on the issues that you are to decide.
However, this is too little, too late. What the jury hears is: Defense: “The defendant is poor.” Court: “Ignore the fact the defendant is poor.” That’s like telling someone not to look down while walking a tightrope – it’s nary impossible to do.
Thus, I strongly encourage all personal injury attorneys to file the same, or similar, motion in limine. Keep the juror’s focus on pertinent issues – liability, causation and damages. Anything else is distracting and, ultimately, detrimental to your case. This is particularly true where the jury is left to wonder how the “poor” defendant will be able to pay the verdict it has been given the task to render.