Tuesday, February 17, 2009

All Your Case Are Belong To Us (Jury Duty, Part III)

(Note: This was long enough to break into two, but I wanted to finish. Please pick a comfy seat...)

After 2.5 days of Constitutional voyeurism, it was finally time to make them sit around while we do mysterious crap for awhile. Finally, we're important!

In fact, during the closing arguments, the plaintiff''s attorney let us know how important. He was hoping for at least $2 million. Until that moment, I didn't realize that we not only had to pick who was at fault, but if we sided with the plaintiff, we had to pick how much money it was fair for her to get. How do you put a price on that kind of thing? They gave us a chart from 1949 that gave us average life spans for someone of a given age, but that's hardly enough information.

Our primary responsibility is to determine who was most responsible for the accident. Since she brought the suit, the plaintiff has to prove that the defendant has at least 51% of the blame. In the case of a tie, the defendant wins. Pretty heavy.

Before we go deliberate, the judge reads us a lot of pieces of law that pertain to the case. These laws include:
  • the responsibilities of a pedestrian when crossing away from an intersection (as it turns out, the plaintiff did not cross at an intersection -- she actually walked away from an intersection to the place where she crossed)
  • the responsibilities of a driver (just because you have right of way does not mean you can mow down jaywalkers -- you are still expected to do everything possible to avoid an accident)
Essentially, from our point of view, the question was whether or not the defendant had enough time to see the plaintiff and make a reasonable attempt to stop or swerve. Seems straightforward enough, but there were several things about the plaintiff's actions we had to consider:
  • She chose an extremely dark patch to cross -- there is no street light in the ~200 yards between the intersection and the convenience store, and it was overcast, so there was no moonlight
  • This was the first night she'd ever made this crossing after dark (although this was her third crossing of the night -- she had been to the store once but had forgotten the phone number and had to go back for it)
  • She was carrying one child and had another in tow, so she wasn't moving fast. She's not a large person anyway.
  • When she stepped off the median to cross the last lanes, she never checked the traffic again. This is important, because she was holding a baby against her right shoulder, so her peripheral vision was blocked in the direction of oncoming traffic.
And one thing we were never told: what color were her clothes? If she was dressed in dark clothes, she would have been invisible under those conditions. We knew what the 3-year-old was wearing, thanks to those damn pictures, but he was on hidden on the other side of his mother. Frustrating to not know that, and inconceivable that a policeman didn't think to note it at the time.

Once we picked a foreperson, we went around the table expressing our views. First guy up said the entire case was bullshit, and it was clear to him that they made it all the way across, then the three-year-old broke free and ran back into the road, and the mom chased after him instinctively, then made up the story so she could have a better chance in a lawsuit. Possible, I guess, but we can't really start assuming new scenarios. ("I think they got to the far sidewalk and Bigfoot kicked them back into traffic!")

It looks like sentiment is leaning in one direction, so we take a vote: 11-1 for the defendant. This is a classic moment of what lawyers call Es vos defecio mihi (or "are you shitting me?"). The dissenter responds with a classic Ego defece vos non ("I shit you not") and that's where we break for the evening.

This gives me time to think things through without distraction. The plaintiff is maintaining that the defendant was driving negligently, and should have seen her and the kids in plenty of time to stop, even after dark. Since she didn't stop, it is logical that she wasn't paying attention to the road.

This is when all the math and physics and all the emotional appeals and the debate about whether it was rainy or drizzly or misty or foggy and 75% of the rest of the points they made all week drop out of the picture for me. Yes, it's possible that the defendant was digging through her glove compartment or turned and talking to her sister or something.

But there are lots of places a driver can be looking without being negligent, like glancing at the speedometer or clock, or looking in a rearview mirror. Or a sneeze, or a cough. Just about anything at the wrong second would be enough.

The main thing is: I can't think of a reason other than neligence to step in front of a moving car. If she had turned to look before she walked into that last lane, she could have stopped, the defendant would have sped on by, and that kid might be a healthy six-year-old right now.

By the next morning, the holdout had come to a similar conclusion. 12-0 for the defendant.


While you're in the rarefied air of a jury box, you get used to not being allowed contact with anyone involved with the case. You don't think about what can happen the minute your verdict is delivered: you are normal citizens again and can be harassed by anyone. Sure enough, as soon as we leave the jury assembly room, the entire defense team, the defendant, and her parents are waiting for us. They are all smiles, and want to hear whatever we feel like telling them. This is what I tried to convey:
  • The emotional appeals can backfire. We felt terrible for both parties, and didn't need help to get emotionally involved in the outcome. The only way we can resolve it is to look at the law and the evidence dispassionately.
  • Questioning the plaintiff's motives in bringing the suit is unnecessary. She has the right, which is enough. Plus, in her shoes, I would do anything to convince myself that it's not my fault my kid is dead. When my dog died, we didn't do a necropsy, partly because I didn't want to know if I could have done something for him but didn't.
  • In this case -- and I would bet most cases -- the parties involved are not trained observers. Quizzing them about mundane details (like distance from a curb) or obscure measurements (like feet per second) in the dark at the instance of a life-changing event three years ago is nitpicky at best, but when they don't know or give an answer that doesn't fit the evidence, it doesn't automatically weaken their case. ("My boy got hit! He was only three! Plus he was 5 feet 8 inches from the curb and moving at 3.2 feet per second!")
Despite that, I don't have a serious problem with how either lawyer conducted themselves. They were professional and courteous and laid out their cases clearly. I really just think they spent a lot of time trying to obfuscate the other guy, and I can even understand why they would intentionally do that. Our jury seemed able to cut to the heart of the matter, but maybe we were atypical.

What sunk the plaintiff's case was that it was too steep an uphill climb to offload a majority of the blame to the defendant. Maybe for the next one they can use my Bigfoot theory.

Speaking of whom, when I turned away from the lawyer, she and her parents were standing there. Her parents were all smiles and bowing, but she just looked exhausted. She thanked me, I told her I was sorry for all she'd gone through and wished her luck, and they left. I imagine she is glad to not have to come up with a giant pile of money, but I also bet that thump she heard still echoes in her head.

Overall, I'm glad I had the experience. I understand more clearly how important having a jury is, and I'm glad I was involved with an interesting case, even if it was a horrible story. Beats listening to a tenant sue his landlord because of water damage from a faulty dishwasher.

As I left, I heard that same juror tell the defense lawyer that he knows the kid turned and ran back into the road. One of the other people sitting at the defense table turned and said "Remember when I asked you that two months ago?"

Jerk probably caused a mistrial. Anyone out there know a sure-fire way to get out of jury duty? Just in case...


Michael L. Neff said...

Did you think that the Defendant really would have to come up with a pile of money? Did anyone assume that the Defendant had an insurance company that would pay the verdict?

The Man Version said...

No, I think there was an assumption that the defendant had insurance. I don't know enough about how that works to say for sure the insurance would cover a whole $2 million or so. Maybe they would.

It didn't matter, since we weren't going to change our opinions just to screw an insurance company.

Does anyone know how much the defendant's insurance rates might have gone up if we said it was her fault?

Nelsontyrone said...

Thank you for writing this. As a trial lawyer I often feel like giving my case to a jury is like being in a relationship with someone who doesn't speak English. I'm there, they are there, but I don't know what they are thinking. Do they trust me? Do they expect me to be a snake? Am I living up to it?

I would really like to know how you felt during the jury selection: did you feel that the lawyer was playing a game, trying to plead his case, or really trying to learn something about you? How did you feel about "having someone try to learn something about you"? Did you think their questions were stupid, obtrusive, sneaky? Jury selection is the toughest for me. I am trying to de-select - get rid of the folks who are biased against trying to repair harms with money. At the same time, no one likes to be de-selected. I am trying not to bore them. I am trying to listen to their answers. I am trying not to judge them or cross-examine them into my way of thinking. I am really just trying to do my job for my client the best way I know how. What can you tell me about a juror's thoughts while this is going on?

Cheryl Carpenter said...

I'm a trial lawyer too and was interested in this post especially where you said that the lawyers shouldn't try to sway with emotions. Could you tell me a little more about this. Did you feel manipulated? How do you feel like the attorneys were using emotion and why didn't you like it? Also, you mentioned that the attorneys were just trying to cut the opposing witnesses during cross exam. Did you like this type of questioning? How did you feel about the attorneys when they were harsh with the witness?

The Man Version said...

Wow, great questions, all! I will happily answer them when I can get some time away from my day job, probably tonight or tomorrow. Keep 'em coming :)

I wish I had a similar reaction from the medical world when I was denouncing them for how I was treated during and after my biopsy.

Joyce Collier said...

I agree with Nelson and Cheryl. Thank you very much for your insights. They are so helpful to all of us who do this work. You seem to have done your job thoroughly and with great attention.

Adrienne said...

Thank you for your jury service, The Man Version. I am a GA trial lawyer and read all of this with interest- you have a knack for storytelling, which I guess is why you blog. I need to read more about your bad biopsy experience- my husband is an internist and I sue docs on occasion, although I mostly do personal injury. I came here to read about your trial experience on the other side. My husband served on a week-long murder trial about a year ago (4 days prior to me delivering our baby) and they had a hung jury - he was foreperson & it was fascinating to learn about their interactions as jurors - they were divided into two groups, so less cohesive than your group sounded. My white husband was with three black jurors for non-guilty while everyone else was on the guilty side and happened to be white. Strange.

Insurance companies can frequently be big jerks about settling cases fairly when you are injured. They will usually pay up without much of a problem on property damage claims, but will haggle on personal injury. Hence the need for folks to hire PI lawyers when hurt in a wreck or other situation where a party is negligent. Farm Bureau and USAA tend to be more fair than State Farm (aka Snake Farm), Allstate (aka Allsnake), and Safeway, Progressive, etc. They can all be problematic- by this, I mean that an adjuster will offer my client $100 when they have soft tissue damage (not a bone break that heals eventually, but damage to your soft tissue that can last a couple of weeks or forever- it often does not show on x-ray, making it hard to prove). Ridiculously low offers motivate people to hire lawyers to fight for them. Then, after lawyer is hired, they might offer 1/3 to 1/2 of my client's medical bills never mind any compensation for lost wages or pain and suffering. After filing suit, the offer usually goes up, but not enough. Sometimes on the eve of trial or at mediation it gets to a point that the lawyers can work out a fair settlement. Otherwise, it gets tried. Sometimes, in other non-soft tissue injury cases, there are much more fair offers to begin with. Insurance companies are in it to make money (like most businesses) and will systematically deny soft tissue injury claims, especially when there is little damage to the vehicle as a business practice- some people give up and take small settlements that aren't fair. Studies show in minimal property damage cases, the person often absorbs the impact, causing soft-tissue injury. There was a lengthy story about this on CNN- there are books written about it as well.

Even worse is suing a doctor- they win about 85% of the time. There is a strong white coat bias, which I can personally attest to from hanging out with my husband. Their insurance companies do sneaky things like pressure treating physicians to sway treater's testimony to the defendant doc at risk of losing their insurance. This has not yet happened to my husband, but I have heard these stories from reliable colleagues. They sometimes will speak to a treating doc with no notice to the patient or patient's lawyer in an effort to sway / change the treater's testimony - or to at least neutralize it from being on the patient's side. It is not good. That is why it is so important to have lawyers willing to fight this crap on behalf of regular folks who are injured by the negligence of others. Also important to have docs who are not members of the white coat speak no ill of docs club. Basically, people who tell the truth.

Thanks again for your service and for sharing your experience.

Adrienne said...

Last thing, your rates don't necessarily go up if you find fault. I lost jewelry recently and considered not reporting it b/c rates would go up. My malpractice carrier told me I was wrong on that- I also had a car wreck (my fault) and my rates did not increase. If someone else is more educated on this, I am interested in the correlation of claims made with an increase in rates.

The insurance company represents the driver and their job is to prevent her from being sued personally for her assets. Obviously they are only obligated to provide coverage up to the amount you purchase. I carry 1 million. I would carry even more with an umbrella, but my husband's driving record has interfered with that plan and we are not eligible presently.

The next question is whether you would pursue the defendant's personal assets in the event of a large judgement not covered completely by insurance - I typically do not ever do that, although there is always an exception - egregious facts or rich defendant. In this case, it is likely that a policy limits demand was made. If plaintiff had won and then tried a second case where she proved that the insurance company had acted in bad faith, she could get more than policy limits up to whatever the jury awarded. Bad faith may have been hard to prove here given your rendition. I carry so much b/c if I ever have assets, I will be liable for a large verdict in the event something horrible happens and I harm someone and am negligent. I want my harmed person to be reimbursed and I want to protect my assets.

I don't have any assets now, but judgements are good for 7 years and can be renewed and renewed and renewed....therefore if a doctor / lawyer couple harms you, wouldn't you renew the judgement until they eventually had some money? It's important to make sure your insurance coverage is adequate - always carry the maximum uninsured motorist coverage possible. It is cheap and protects you when someone with no insurance or not enough insurance harms you - it happens more often than you would believe. You can't carry more UM than liability though.