Posts Tagged ‘jury duty’

Don’t underestimate jurors. They really do get it – most of the time!

Tuesday, June 21st, 2011

I just finished a two week trial that was probably one of the most complex medical cases of my 37 year career. Since the “resolution” of the case is the subject of a confidentiality agreement, I’m not at liberty to discuss the details of the case or its “resolution.” Nevertheless, what I am free to tell you is that having tried hundreds of jury trials over my career, it amazes me just how often jurors “get it” when it comes to doing their very best to understand the evidence thrown at them and to do “the right thing.”

The case involved about 8,000 pages of medical records. Jurors heard from 8 medical witnesses ranging from surgery, to infectious disease, to radiology to pathology. This was not a case involving “Anatomy 101″; it was an advanced course in the biomechanics of the spine, neural element compression, biofilms on hardware, pulmonary hypertension, deep vein thrombosis – well, you get the picture.

After nine grueling, long days of evidence, sitting in hard, non-cushioned chairs and having to endure seemingly endless bench conferences dealing with evidentiary issues and objections that the jury was not allowed to follow, our panel patiently waited for over two hours on their final day of service while the parties to the lawsuit worked out “a resolution” of the case. The trial was to end the next day (today). They, the jurors, would finally get to speak to us, rather than having us speak to them for over two weeks.

Once the details of the “resolution” were hammered out, the judge had the courtroom clerk bring the jury into the courtroom to take their “luxurious” wooden seats. The Court announced that the parties had “resolved” the case and that the jurors’ service was now completed. Nine plus days and countless hours of sitting and listening – and now – no chance to deliberate and tell the parties who they – the jurors - thought was right in this legal battle. The judge then advised them that they had served a most important function because many times (this being one of them) the parties could not reach agreement – uh “resolution” – without them. It was further announced by the Court that if they cared to do so, they were now free to speak with the lawyers.

Rather than gather up their belongings and hustle out the door, each and every one of them remained in the courtroom to share their thoughts and observations of the trial. Once again, as has happened so many times in my career, I was pleasantly surprised  and amazed by what they had to say. Peppered with questions by the lawyers to see if they “got it,” our jurors shared their observations about key issues in the case. The told us about their “take” on the evidence involving T1 versus T2 weighted MRI’s. They accurately recounted the evidence regarding the issues of “sub-clinical infection.” They shared their individual thoughts and reflections on what role the decedent’s underlying, complicated co-morbidities played in their analysis of causation.

We’re not talking about a panel of medical experts here. We’re talking about everyday folks, who brought their common sense and varying levels of education and life-experiences to the litigation table. They “got it”!

None of the parties will ever know what the jury’s eventual verdict would have been. Nevertheless, because of the uncertainty of that verdict, the opposing sides in this lawsuit worked their way through a morass of emotion, righteousness, principles – you name it – to get the case “resolved.”

I hear so often from “professionals” that the jury system is broken. They rant endlessly that we need “professional” finders of fact to arrive at just results. Oh really! If that’s the case, then why is it that each side can have highly qualified experts, who can’t agree on the interpretation of medical evidence? Maybe – just maybe – it takes people of plain common sense, goodwill and a sense of justice to get it right.

Have jurors arrived at verdicts in my career that make you want to retire from the practice of law? They have – but on very rare occasions. When you put aside the self-righteousness of bias and advocacy and reflect on verdicts, many lawyers – I for one – appreciate that juries really do “get it” and really try to do “the right thing.”

To all the cynics out there, don’t be so unwilling to appreciate what these citizens do to advance our system of justice. Is the system perfect? Far from it, but not as far from it as many would have you believe.

Let me end by simply saying – THANKS to our citizens who made-up our jury. Your patience, attentiveness, endurance and willingness to serve is very much appreciated. You could easily have dreamed-up a way to avoid service on the jury during the selection (voir dire) process (as so many do in so many pathetic ways), but you didn’t do that. Kudos to each and every one of you. You did advance the cause of justice. You made the parties to this lawsuit take note of the fact that maybe, just maybe, their view of the case was about to be tested in the crucible of the jury room. That knowledge and the reality of an impending verdict made them step back, take a deep breath and come to a “resolution” of their dispute. Well done, Citizens! I for one applaud you.

Jury Duty: Sleeping Juror in FL, An Emailing Judge-Juror in CA & A Wikipedia Juror in MD

Tuesday, April 20th, 2010

How many times have we lawyers seen a sleeping juror (well – I should add – never during my presentation!)?  Before a prospective juror even made it on to the jury in a criminal case in Florida, he was struck by the prosecution on the basis that he was seen sleeping during voir dire (the process of questioning prospective jurors to determine potential bias or other disqualifying information).  While this is a a situation which occurs throughout the courts of this country daily, the ‘sleeping juror’ issue became the basis for an appeal in the case of Harrell v State, ___ So. 2d ___ (Fla 4th DCA – 2/24/10).

In a blog entitled “Don’t Let Sleeping Dogs Lie,” we learn that the prospective juror, a Mr. Sanders, was African-American, as was the defendant.  The defense made a Neil challenge claiming that the prosecutor’s strike was impermissibly based on race.  Under Florida law, it appears, “sleeping” during voir dire is a valid race-neutral reason for striking a juror  — not to wake him up,  but to remove him from the panel! See, Davis v. State, 560 So2d 1346 (Fla 3d DCA 1990).  The trial judge’s decision to strike the juror was affirmed by the Fourth District Court of Appeal.  In essence, the appellate court reasoned that that “in order for non-verbal behavior (like sleeping) to be a valid “race-neutral reason” for a strike the non-verbal behavior must meet the “hurdle” of either being observed by the trial court or being supported by the record.”    

What won the day for the prosecution was that the defendant’s argument did not even reach that ‘hurdle’ since the defendant did not adequately challenge the ‘factual basis’ of the prosecutor’s claim that the juror was sleeping.  Even though none of the other lawyers or the judge saw Mr. Sanders sleeping, the appellate court ruled that because of the lack of a definitive and express dispute to the prosecutor’s observation, the issue was not, in the eyes of the court, properly preserved on appeal.

In other jury news, the ABA posted an online article about a California judge, who was picked for jury duty but who seems to have forgotten that he should not have been emailing the outside world, including his fellow jurists, about his jury duty.

Judge James Oppliger of Fresno County sent four e-mails about his jury service to a group of more than 20 judges, according to stories in theFresno Bee, KFSN-TV and CBS47. “Here I am livin’ the dream, jury duty with Mugridge and Jenkins!” the two lawyers on the case, wrote Oppliger, who was selected to be jury foreman.

Oh, yes – one of the judges who received the emails was the judge presiding over the trial, who failed to mention he had received this ‘juror message’ until after the defendant was convicted of second degree murder.  The defense lawyer was, at the time of the report, considering whether to seek a new trial based on the emails.

And finally in today’s round-up of jury stories, in January of this year, the Washington Post reported on a case involving a juror who was not certain about the definition of a word he had heard in court – “lividity.”  So what did he do?  What every good juror in today’s digital age would do – he looked it up in Wikipedia that evening.

A Maryland appellate court did not think this was as innocent as the juror proclaimed.  

In throwing out the defendant’s first-degree murder conviction and ordering a new trial, the court ruled that [the juror's] inquiry violated an Anne Arundel County judge’s order prohibiting jurors from researching the case.

So, when you get called for jury duty, keep the above principles in mind: don’t email, don’t research online and by all means – don’t close your eyes during voir dire.  You could be the next subject of a blog if you do.