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PostAnatomy of a Jury Trial: A Frontline Report (David Duggan, USA, 01/24/19 4:00 am)
I promised WAISers that I would provide an account of my service on a jury in the Circu[s] Court of C[r]ook County, the home of the judicial fix, and now can say that I have done everything possible to be done in the legal system: represented a plaintiff, and a defendant, prosecuted a criminal and defended an accused, both at trial and on appeal; been a plaintiff and a defendant; sat in judgment of a case as an arbitrator, and now, served on a jury. I guess I can say that my life as a lawyer is now complete.
I had not received a jury summons for more than 10 years, and thought I had aged out of the process. But when I received one late last year, I figured I would report to the downtown Daley Center, wait around for the day, maybe be drawn into a venire, but because of my profession, ultimately be excused. Either there is a new thinking about selecting lawyers as jurors, or the pool of potential jurors is diminishing, but my heartfelt hopes were dashed two weeks ago when my name was called into the panel, and I was "voir dired," by first the judge, then the plaintiff's lawyer, and finally the defendant's lawyer. The judge, a folksy-type despite the Northwestern mug on the bench and his lineage as the son of the former Cook County Democratic party chairman, focused on our involvement in the civil judicial system, believing that anyone in Cook County was the victim of a crime or closely related to one. I said that I was the lead story on the evening news 13 years ago when I was hit by an out-of-control SUV careening down a Loop parking garage chute, throwing me 30 feet in the air before lodging in a Popeye's Chicken place under the "el" tracks. The judge said that he remembered the incident and asked if the matter had been "resolved satisfactorily." I responded that it had been "resolved." To the inquiring lawyers I allowed that while most of my practice had been commercial litigation, before shutting it down, I had represented a few personal injury plaintiffs. I said that I knew people who had suffered traumatic brain injury and that, as a former Division I college athlete, I was a member of a class action filed in the Chicago courts. None of these disclosures was sufficient to get stricken.
There followed roughly three full days of testimony and a half day of deliberations. The defendant had admitted negligence--he admitted to looking at the GPS on his phone when he rear-ended the plaintiff--so our sole role was to find damages. The plaintiff, an assistant professor at a nearby college, and his experts testified to a wide range of behavioral issues after the accident, but how many of these were compensable and how many of these were simply the result of having been wrapped pretty tight both before and after the accident? Having been a personal injury plaintiff in the Circuit Court, having sat as an arbitrator in myriad rear-ender collision cases through Cook County's mandatory arbitration system, and having pegged damage claims to the amount of the medical bills, plus maybe some lost income, I was surprised that no medical bills were offered into evidence or stipulated to. With one exception, the treating and expert psychologists, therapists, and doctors testified via depositions read in court, without videotape and with no tangible exhibits, such as medical records entered into the record. To say no more, even with the ability to take notes, this was boring.
Prompted by my request, the judge allowed us to write out questions for the live witnesses. We would tender them to the bailiff, who gave them to the judge, and after consultation with counsel, he would decide whether they were appropriate. The judge read most of my questions to the witnesses, but omitted a couple of others including whether there had been any sexual side-effects from the accident.
Of course, jurors are not supposed to talk about the case before deliberations, but I wondered aloud whether there was a claim for punitive damages, and whether we were going to see any medical bills. After the plaintiff rested, the defendant contradicted the plaintiff's estimate of his speed at impact. The defense expert testified that whatever injuries that plaintiff suffered should have resolved well before the trial, taking place four years after the accident. It was only in closing arguments that we heard any theory of damages, or for that matter saw any document in the case. Using a blow-up of the verdict form, the plaintiff asked for a total of $3.56 million, across six categories: loss of a normal life, past and future; pain and suffering, past and future; and emotional distress, past and future. Defense counsel acknowledged some of these elements, but the amounts were nowhere close. On my note pad I wrote down high and low "all in" numbers which were closer to the defense's suggestions. In his instructions, the judge took away any need to find causation, so the whole issue was the damages.
In the jury room, after volunteering I was elected foreman. I asked my fellow jurors, including one other lawyer and a medical doctor, to give their impressions of the extent of liability, without putting numbers to the damage elements. Some thought that the plaintiff was asking way too much; others thought that we needed to compensate him for the behavior changes, as well as possible loss of future income from his job, should his career be truncated because of those changes. There followed an interesting exercise in the economic phenomena of the "wisdom of crowds," and a "Dutch auction." As identified in a book by the same name some 15 years ago, the wisdom of crowds describes how at a county fair, the average guess of the number of jelly-beans in a jar comes remarkably close to the actual number: the buried premise is that even though no one is going to compute the volume in the jar, and the volume of a jelly bean, and see how many will fit, everyone's rough guesses will average out and become very close. And at a Dutch auction, rather than start at a low number to get a bunch of buyers to bid against each other en route to a higher number, the auctioneer starts at a high number and goes lower until someone agrees to buy, fearing that if the price goes any lower someone else will steal the product. This method is still used in the daily tulip market near Keukenhof Gardens. The advantage of this in reaching a jury verdict is that, since no one's personal money is on the hook, the high-number hold-outs have to consider whether their beliefs are worth deadlocking the jury. If the bidding went the other way, the low dollar persons have no real reason to stick to their guns precisely because they have no skin in the game. This format worked reasonably well, and after a working lunch and a couple of hours of back-and-forth, we had a verdict. I notified the bailiff and after she saw the filled out form, waited for her to call us back into the courtroom.
Half an hour later, I trailed the rest of the jurors into the twelve seats, and handed the verdict form to the bailiff, who handed it to the judge who read it out. The plaintiff was happy; defense counsel perhaps less so. Surprisingly, we weren't polled, and returned to the jury room to fetch our belongings, be thanked by the judge and get our last checks. The judge came in to hand us our certificates of service, offer his hope that we had enjoyed the experience in participatory democracy, and asked if we had any questions. Never one to pass up an opportunity, I asked what the spread was before the trial: he said that the plaintiff had demanded the policy limits, but the defense hadn't even offered the plaintiff's medical bills which were well within the limits. Now the defendant's insurer is facing an "excess limits" case, meaning that since the verdict is above the limits, and the insurer failed to settle the case within the limits, the insurer is on the hook for the difference. This was the "good neighbor" insurer, in case you are wondering.
During closing arguments, I saw in the gallery a woman whom I had known years ago. Since I understood her practice to involve plaintiff's personal injury, I suspected that she officed with the plaintiff's counsel, and called her afterwards. My suspicions were confirmed, and she said that I was specifically selected for the jury with the expectation that I would be the foreman. There goes the old thinking. Now if I can only get rid of this crick in my neck which I got by craning it while seated in the infernal 50-year-old swivel chairs in the jury box so that I could hear the witnesses. Maybe one of the plaintiff's lawyers will represent me.
And as a coda to my earlier post about the Jason Van Dyke sentencing, I had wondered if outgoing Illinois Gov. Bruce Rauner would commute his sentence to time served or otherwise pardon him on his exit, à la Bill Clinton (fugitive fraudster Marc Rich) and Barack Obama (Gangster Disciple Eric Wilson), or outgoing IL Gov. George Ryan who in 2003 commuted the sentences of everyone on death row (more than 160). Since Rauner couldn't get elected dog catcher in Winnetka after his performance as governor of the only state which has shown a net decrease in population since 2010, I thought he'd have nothing to lose, and since the verdict was at best a political statement designed to keep a lid on Chicago's racial tinderbox, there had to be a political solution. Rauner decided not to go out with a bang.
JE comments: Another great insider's report, David! Somehow I've slipped under the radar of jury duty for a lifetime. You did not mention the final verdict amount of your case, but the defendant (and certainly his lawyers) must have been happy. Don't they usually get one-third?
I'm a junkie for demographics, so I had to check. Most sources list West Virginia, Connecticut, and Puerto Rico, together with Illinois, as the US states losing population since 2010. Michigan was the only state to decline in population between 2000 and 2010, but happily, we've actually grown since '10.
Gary Moore on Sundry WAIS Topics: Litigation, Catalan, Venezuela
(John Eipper, USA
01/25/19 3:08 AM)
Gary Moore writes:
Great to read David Duggan's deftly hilarious tour (Jan 24) of the legal system.
But also very troubling. Sky's-the-limit on damage awards for causing "behavior changes"?
Lesson: Never, ever look at your GPS (as David's absent-minded motorist defendant did)
while you're in rear-ending position. Somebody's behavior might change.
And re Jose Ignacio Soler (same date) and the Catalan language not being formally structured
until 1918: the Albanian language, with many Latin remnants on top of something profoundly ancient,
didn't get its own written alphabet until 1908. The makeshift before that was the alphabet of Albania's
half-millennium occupation: Turkish. Others can perhaps comment on Turkish and Arabic--but another mystery is how Turkish got "merci."
Of course, the urgency of Nacho's accompanying report on Venezuela is on another plane, reminding of WAIS's multi-track symphony: both fife and drum. Three-dimensional chess
as riddles whisper and worlds collide.
JE comments: You are correct, Gary. Like any good symphony, WAIS both entertains and makes you smarter. If I have any conversational value at a cocktail party, 80% of it comes from what I've learned on WAIS. As the Turks would say, mersi to you all.