Sunday, February 22, 2009

JURY DEBRIEF: The Cast of Characters

The Judge was a king. Although greatly influenced from a very gracious act of allowing all of us jurors into his chambers after the ruling was announced to answer all of our questions, he ran a tight ship. At times it looked as if he wasn't ever paying attention - but when an Objection was called he was right on top of it. Later we all learned that he purposely looks down in order to not give any nonverbal communication on to the jury that could influence us in any way. He is a man who's name I can't wait to see on a ballot - to punch YES.

Our First Deputy deserves his own variety show. He was only our deputy the day of Juror selection and our first couple days on the trial. He spoke with confidence, he knew the game, he's the kind of man who if the building caught on fire would be the one leading the sane way out. I would love to know his opinion on anything.

Our Least Favorite Deputy kept stealing our morning orange juice. First she asked for just carton, then she asked for two, and finally she just took'em without asking. She talked to us about everything we didn't want to hear about like her belt. And her belt under her belt. She carried around a flashlight that didn't work because she sweat too much. I'm sorry that I had to tell you that - but we found out, so I'm sharing the pain with you.

The Counsel for the Plaintiff was by any angle you look at out manned. I believe his uphill climb took a toll on him that was clearly visible from the Jury Box. Not only was he literally out manned by a number of four defense attorneys to just himself, but also I truly believe every one of the defense attorneys were more capable than him. After all four of them would cross examine his witness, his re-direct was over before it began... Similar to an offensive team finally taking the field after their special teams had given up 4 touchdowns before their first snap.

The Counsel for DOCTOR A was a charismatic Latino who loved the court room. It was probably his favorite aspect of his occupation: pacing in front of the jury, demonstrative gesturing, a true thespian of law. Might have done the best job out of anybody connecting with the Jury. His competence makes me believe anybody who wants to be a trial lawyer must take as many public speaking classes - and even acting classes - if they wish to succeed.

The Counsel for DOCTOR B was a bear. He reminds me of your friend's father who will "tell it like it is" but in an extremely exacting method. He was viewed as condescending by some of the Jury for his style of simplistic questions to yield simple answers. But he never fooled me. I could tell that he knew exactly the medical terms he was asking - and at times you could see the Mack Truck about to hit the witness four questions in advance. He was also the grandstander of the bunch. Nobody in the courtroom yelled 'Objection' as often or with as much authority as him. The other attorneys for the Defense, in my opinion, leaned on the fact that he would be the bully (allowing each to concentrate on just speaking well of their own client, not wasting time on speaking ill of others).

The Counsel for DOCTOR C was the most analytical person in the courtroom. I get the sense that the research aspect of these cases is his favorite. As methodical as through, he would at times test everyone's patience with a laborious review of a countless number of typed or handwritten notes from the PATIENT's file.

The Counsel for DOCTOR D presented his own unique style which featured a laid back attitude and propensity to inject comic relief when he could. Please don't misinterpret: The man was as serious as a multi-million dollar medical malpractice case. His comedic jabs were impeccably timed as he could sense the moments when the tension needed to be snapped.

I paid attention to all the Court Reporters. Especially the young brunette who had eyes of steel and a face that wouldn't crack a smile if Brad Pitt walked up to the stand holding a chisel. All of these court reporters were fascinating. One of'em had to go home with busied fingers - for she beat that steno machine like it owed her money. Some had an orchestral flair with sweeping back swings and melodic rocking back and forth in the chair, as if the dialogue created a bass line to groove.

(There were 14 Jurors selected)
Juror 1 was a young woman, a single mother we suspect, who was dismissed before opening statements. She had told her employer the previous day of the three week time commitment asked by the court and was met with a response of, "we can't fire you - but we can't pay you." It was understandable that she couldn't have gone an entire pay period without a paycheck, which made me thankful I had a job that was covering me through my civic duty.

Juror 2 was an idiot. I'm sorry if I'm being harsh here. But anybody who walks up to The Counsel for DOCTOR A and says, "You're doing a great job" during a lunch break is a bonafide boner brain. That's the true story (from the Judge) on why he was dismissed. And I tell ya that he sat right next to me during some of the testimony. Dude had a "bad back" which made him stretch at odd times. It looked more like an impatient kid in the back of a car to me. Not to mention this guy had one of the worst poker faces in history during the trial.

Juror 3 worked in a dentist office and had a quiet charm that reminded me most of my Mother. I could all but hear her evening recaps with her husband about the other jurors (especially the kid that wouldn't shut up and built the facade like he knew everything and worse wasn't shy about sharing his opinion of it). Poor lady got a puncture wound on her finger halfway through the trial. Nearing the end of the process, and hearing all this expert testimony on infections, began to think it had gotten infected. We all thought it got infected. The Judge excused her to let her get an earlier doctor appointment. No question it was the smart thing to do, I never could have concentrated thinking I also (like the PATIENT) may be infected. It hurt her, we all knew, that she was unable to have a say in the ruling.

(That leaves 11 Jurors left - these are the ones that were there until the end) Juror 4 was also almost excused from the trial. As a worker at a dermatologist's office, one of the witnesses for the defense was a doctor her boss would call in for consults. However, the Counsel for Plaintiff liked her, and wanted her kept on the jury. Describing this Juror will be the easiest of the whole lot: She was a Guatemalan Eva Longoria who never stopped moving. She would dance no matter how many earplugs from her iPod were in her ears - even if that number was zero.

Juror 5, on the same day of Juror's 4's near expulsion, was nearly excused as well. During Jury Selection, the judge named about 4 pages worth of doctor's names - wanting to know if any of us know any possible future witnesses. Juror 5 mentioned that she was the maid-of-honor for one of the listed sisters. But she had no other interaction beyond that and more importantly would not influence her judgment. If we would have lost both #4 and #5 it would've dropped us below 10 jurors (the minimum amount agreed pretrial). We would've all be sent home due to a mistrial, 2 weeks wasted and all parties had to start with a new jury. Juror 5 was a (divorced) mother in her early middle ages working for a high powered consultants office blocks from the courthouse. She earned an MBA from a highly notable school (I even called her on it and she said, "oh, it wasn't that reputable back when I was there"). She was an extremely sharp cookie, and who's sharpness I knew would come in handy... later...

Juror 6 is cut from the same cloth as I, in only ways that I hope. He ended up being our foreman, mainly by default. We had a great sense of community - and team - but we used the excuse of his prior experience on a civil trial to be the deciding factor in naming him foreman. He is a man in his middle early ages, completely bald (by both nature and decision) working at the corporate office for a very large drug store chain. He later admitted to taking a couple Improv classes at The Second City - and it showed. I mean that in a good way. He had a quicker wit than I - and his jokes hit with laughter on a much higher percentage than I. He is also a gambler and card player.

Juror 7 was the queen of the Jury Room. In her mid sixties, to call her the matriarch of the group is selling her short - she was more of a point guard. A real "glue" of the room as she would interact with us all, and ask open ended "what's with the world today?" type questions that got us all talking. We would not have had the rapport we did without her. Every day I had the goal of making her laugh. Friends have later asked me if there were any cute single girls on the jury. I've told them that I flirted a ton with one of'em... But she was a widow more than double my age.

Juror 8 was a man in his possible late forties or early fifties. A great model of adult suburbia. His nicest shirts were bought from his wife. His greatest stories involved his grown sons from younger days. He was a warehouse manager by profession, but lacked any stereotypical coldness a blue collar may lend. Also, he had one of the world's greatest mustaches. The kind of mustache that would look ridiculous on everybody who didn't earn it the way he did...

Juror 9 made me smile from the bottom of my heart the first day I met her. She was a 60 year old grandmother who we all tried to think of gifts for her 14 year old granddaughter (impossible, by the way, they hate everything). She made my heart smile on that first day because of a small jewelry pin of the letters CHANGE. She also mentioned her plans to retire and move to where she grew up: Mississippi. And let me, at this time, say this Macy's store worker (who had to work weekends during this trial) is a black woman. Jury selection was January 21, the day after Obama's inauguration. I felt a gap in my heart, but in a good way, in how I couldn't comprehend the pride of a woman who spent her youth in The South of the 60s and now has a President that doesn't look like the green men on our currency.

Let's cast Vin Disel in the movie interpretation for Juror 10. Something like a follow up role to The Pacifier. But this time Vin is playing Juror 10, a young junior high science teacher with a basketball and volleyball coaching responsibilities on the side. Now, he'll probably be the first to say that he's not buff guy - and maybe tease me because I'm taking the lazy way out. For was well over six feet, also had a shaved head (like Juror 6) and he could be intimidating at the drop of the hat if he wasn't smiling and joking most of the time. But he's a fellow single guy - and I want to help him out. Juror 10 is also another fan of the previously mentioned hot court reporter.
Juror 11 is pregnant. She's also a young 100% Itiallian Chicagoan, and an elementary school teacher, and a fan of some high quality and low quality television programs - but if I'm going to pigeon hole my fellow jurors: she's the prego. She had her first ultrasound appointment during the trial. She wanted to bounce potential baby names off us. She's also said to me once, "I bet all your friends to to set you up with their single friends?" All I could say, dumbfounded, was "nope... It's happened once in 30 years."

Juror 12 was extremely difficult to get a read. I know that she was young woman, worked at a cosmetology place (maybe she was a cosmetologist herself?) and has been with her husband since high school. Very quiet. Very polite. Never got a laugh from her, only polite smiles. I thought if anybody was going to write a tell-all "I was in a jury of morons, freaks and losers" it might be her. But she is far too polite to ever do something like that.

Juror 13 was also very quiet. She was a young Latina who kept mainly to herself and her cell phone text conversations during our break. She was engaging, when engaged, and was generally in a smiling mood most of the day. (None of us, going through that testimony, could be in a smiling mood the entire day) I am very thankful that she was one of the dissenting opinions in deliberation. If we had all instantly agreed and spent less than a half hour deliberating - I feel that we were short changing somebody. That her initial disagreement caused a discussion that had to happen after closing arguments.

Juror 14:
Me.

The Grandstanding, Metaphors, and Visual Torture of the Trial:
We, the jury, loved hearing "Objection" yelled. It became a code in the Jury Room. "213," and "Scope" became ultra inside jokes to us. One of lawyers kept motioning to his groin region. Another lawyer wanted to lie down on the courtroom floor. And another lawyer kept using a football metaphor. Now his metaphor made sense. An Internist is like a quarterback. But when he extended the metaphor out like the following example, I had a problem:

"It's like when Mr. Orton calls an end around - so when he turns and pitches the ball it's because he knows that Mr. Hester will be there to catch it."

My first problem with this metaphor is that if you want your client to look competent: don't align them with the offense of the Chicago Bears. Secondly, you want to SERIOUSLY avoid relating the play comprehension of Mr. Devin Hester to anybody in the medial profession.

Near the end of the trial, The Counsel for the Plaintiff tried to use a metaphor of a ship. No question, one of the worst metaphors ever attempted. It confused everybody - even the judge (although I think he was trying to hide that emotion). To attempt to clean his metaphor up: The patient is a ship, the doctors are aboard that ship as lookouts... And then somewhere we got into a discussion of The Iceberg that sunk the Titanic and the other ships that were able to navigate that ocean on that night. Bad.

On a related metaphor thread - I had a specific scene from A Few Good Men running in my mind during this trial. It was the scene in which Tom Cruise's character asked a witness to find "The Mess Hall" in the Marine handbook. Citing that just because something is not in the handbook, doesn't mean it doesn't exist." There was a lot of testimony revolving around the interpretation of various medial notes. A lot of presuming what absence of material meant or didn't mean. I wanted to share this with the Jury badly, but was instructed to not mention anything about the case. Finally, during the closing arguments the scene was referenced - and I perked up in my chair only to get deflated when it was misquoted by the Counsel for DOCTOR B.

The Lunches:
Allow me to describe the glory of the Southwest Chicken Wrap. It was plain and simple, the best option on our lunch menu. Our First Deputy had recommended it's quality. And I kept ordering it as an ode to his memory. And also cause it was tasty. I sang it's praises to my fellow jurors - by the end of the trial half the jury was ordering the Southwest Chicken Wrap.

I should also mention that I made a mixtape for two jurors. It was the same one, just two copies. The Queen of the Jury (you know, the one I was flirting with) and the Prego (you know, the one who referenced me being set up with friends) and I would have nice pop cultural discussions during lunch. And when prego mentioned an up and coming songstress - The Queen wanted to hear a song. That was all I needed to start the creative mixtape titled "Listen and Deliberate."

We were under the constant attack of projected notes. A word of advice to all trial lawyers: Incompetence in presenting the evidence has an ability to make the evidence less credible.
One of the lawyers never figured out the projector's functionality. One day I may write, direct, and star in a one man stage performance illustrating his ineptitude.

Frequently, The Counsel for DOCTOR C would beat down the analysis of these doctors and nurses notes to the point that only dust remained on the projector. A cell phone rang during one of these duststorms. Our Least Favorite Deputy got on her high horse and called out, "Who's phone is that? But our Judge, in a comment he later apologized to us after in his chambers, said "No, it's okay - It's a nice change of tone." We told him that we all felt the same way. However, to his analytical beatdown credit, the lawyer produced one of the nicer poster board board displays of a time line that would make any art teacher shed a tear of pride.

The Deliberation and Aftermath:
About ten minutes into "the real deliberation" which started after we discovered where the disagreement lied, I checked out of the debate on purpose. When I have opinions, I like to argue them. I have also been told that I can be interpreted as condescending. This is when I relied on the mental braun of our MBA juror. It was clear that she, more than any of us, wanted to get home and done with the trial. When she took the lead in pursuing the disagreeing juror's doubts I sat back and was pleased to do so. But the prego interrupted us all for a moment and said, "Tom, what do you think?"

I collected myself and tried to carefully find the proper word choice.
(To paraphrase what I said):
"Well... like I said I have doubts about DOCTOR C's possible negligence. Some of these things did happen on her watch. However, that being said, when I saw that autopsy, and it's explanation... I don't see anything at all associated with DOCTOR C. And because I feel that way, I can in no way file for the Plaintiff against DOCTOR C."

Juror 13 responded "...when you put it that way..."

By the time we walked back to the courtroom, there weren't many people there waiting for us (approximately 2 hours after we were given deliberation instructions).

Minus their counsel, only DOCTOR B was there. Other jurors expressed relief that they didn't have to see the reaction of the PATIENT's mother or family. I was surprised that DOCTOR A and DOCTOR C had left. I wrote it off as them having family obligations, or maybe just a feeling of exhaustion. They didn't have to be there for the trial - but they were. To have your professional livelihood put on examination and criticism like that has to be grueling to an extent I hope never to know.

---
So the Jurors and I all exchanged e-mails... Well, some of us. The Obama Mamma doesn't own a computer, let alone Internet Access. And the mustached patriarch of our team supplied a phone number instead... the classy move. These two are the only ones to be immune from my follow up emails to the rest of the jurors. Notes I send them to encourage the reunion some of us want. Notes I send still trying to make them laugh. And general "what the hell was that ship analogy about?" types of comments.

I've sent my previous post to them, for review of accuracy. I will also send this posting to them as well.

If you can believe me, I had to edit out a lot of my memories and experiences. I could write volumes about this group. I told them that I wanted us to rent a short bus and travel the country solving mysteries... Kinda like The A-Team.

--

P.S. A very special mention:
DOCTOR B has a perfect quote from The Big Lebowski in his testimony. Here's what the offical court transcript would look like:

QUESTION: ...and the ultrasound showed it to be one by three and a half centimeters in size?
ANSWER: Yes.
QUESTION: About the size of a golf ball?
ANSWER: Obviously you're not a golfer.
QUESTION: But that's what the note said...

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