That’s what a client said to me earlier this week.

In Washington there’s an evidence rule that reads:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.

It’s the same in federal and most other state courts.

I’m sure jurors would like to know whether the defendant has insurance. And there’s no question the plaintiffs want the jury to know there’s insurance. But, unless things really take an unexpected turn, insurance cannot be mentioned.

It’s kind of surreal that everyone knows there is insurance—or that there should be insurance—but the word is never mentioned.

My fear is that because the word is never mentioned, the jury will incorrectly assume that there is no insurance and the defendant will be ruined by the verdict.

The Judge gives an instruction to try to contradict this (natural concern). It reads like this:

Whether or not a party has insurance, or any other source of recovery available, has no bearing on any issue that you must decide. You must not speculate about whether a party has insurance or other coverage or sources of available funds.

But is that enough? I have my doubts.

And it’s those doubts that make it so easy to empathize with clients when they express dismay and disbelief that the jury is never going to find out that the young school teacher, nurse, retiree, etc. has a $5M insurance policy and absolutely no personal exposure.