For obvious reasons, lawyers rarely are seated on juries. But one lawyer beat the odds and came away with insights that are instructive for all who ponder the dynamics of the civil jury.
Hundreds of us quietly gathered in the massive waiting room on the basement level of the Hennepin County Government Center. Holding our jury summonses in one hand and constantly checking our smart phones in the other, we listened as a veteran court employee told us how to fulfill our civic duty. After she finished, I raised my hand.
“If I’m on a panel and I get stricken, am I released from service? Can I go?”
“Sorry, but no,” she responded, “you come back down here and the process starts all over again.”
That was exactly what I didn’t want to hear. Since I’m a lawyer, I knew I would never be left on a jury. So, for the next two weeks, I would bounce back and forth between the courtrooms upstairs and the jury waiting room downstairs.
Ten minutes later, I found myself in the 19th floor courtroom of Judge Marilyn Rosenbaum, sitting with 11 other Hennepin County residents, answering questions from the judge and the defense attorney about my job, my experience with injuries and car accidents, and my attitudes toward insurance companies. After a break, the judge read the names of the four people who had been released from service. I was sure this would be the first of many strikes for me, the first go-round on the carousel, from courtroom to jury waiting room, over the next two weeks.
Being excused from the jury was a virtual certainty. Not only had I disclosed that I was a lawyer, but when the judge mentioned that this was a civil case, I said that I did civil litigation. When it became clear that this was an injury case, I said that I had worked on cases where plaintiffs had alleged injuries. The jurors’ attitudes about insurance came up, and I said that my father was a retired insurance company attorney. I even said that I had a case pending in front of Judge Rosenbaum, to which she responded “I wondered when you were going to bring that up.”
After a break, it came time to tell the potential jurors who had been excused by the plaintiff and defendant. The court pointed to the taxi driver who had recently been in a car accident, the information technology specialist who had a few nagging sports injuries, the retired mother of six who had recently undergone knee surgery, and the machinist who said almost nothing during voir dire. I was going to serve on the jury. I was flabbergasted.
The case was straightforward. The plaintiff—a former certified nursing assistant—was stopped at a stop sign in Minneapolis when she was rear-ended by the defendant. She claimed that the collision caused relatively minor back and neck injuries. She also alleged that the accident caused a rotator cuff tear or, at a minimum, aggravated a preexisting tear that had become asymptomatic. She charged that, because of the accident, she needed to undergo shoulder surgery. Her lawyer asked the jury for an award that would pay for missed work, medical bills and pain and suffering, mostly due to the shoulder trauma.
The defendant admitted that the collision was her fault. But she was still sympathetic, since her behavior at the scene had been exemplary and she was riding with her young student-mentee at the time. The defendant’s lawyer pointed out that the plaintiff’s rear bumper suffered only the tiniest crack. While he conceded that the plaintiff had some neck and back pain as a result, he also showed that the plaintiff did not complain about shoulder pain until considerable time had passed. The defendant’s lawyer was also critical of the plaintiff’s doctor’s opinion that the collision caused the plaintiff’s rotator cuff injury. After all, an MRI showed that the tear to her rotator cuff was present a year before the incident. And the defendant’s expert testified that repeated lifting (the very kind that nursing assistants do to help their patients), not sudden events, causes rotator tears.
In other words, it was a run-of-the-mill injury case. Not a complex fraud case or a thrilling John Grisham-style courtroom drama. But to a litigator like me, the interaction among jury members was fascinating, and the lessons learned would apply equally to bigger, more complicated cases.
Camaraderie & Deliberations
The trial lasted two days. Not a lot of time, you would think, for jury members to form bonds. But I found that there is a certain built-in camaraderie to serving on a jury. Also, there is a lot of waiting around in the courthouse hallway during a trial. During these breaks, the jurors talked about what it’s like to raise twin boys, how hard it is to get a ticket to Target Field, whether digital photography is better than “old school” film, whether public sector workers in Wisconsin should retain their collective bargaining rights, and which color of finger nail polish looks best. In short, it didn’t take long for the jury to become a tight-knit group.
Once deliberations started, things got really interesting. My fellow jurors immediately elected me—“the lawyer”—as foreperson. They called me “the lawyer” because no one remembered my name. Although it had been mentioned once or twice during voir dire, I wasn’t offended. I couldn’t remember any of the other jurors’ names, either. This, it turns out, is one of the odd things about being on a jury: Jurors are friends and strangers at the same time.
I thought it made sense to start our deliberations by trying to separate the plaintiff’s back and neck injuries from her alleged shoulder injury. But several of the jurors wondered why we would use this approach. “The lawyers said her back and neck injuries were not at issue,” one of my fellow jurors said. “To me, that means they’re not part of the trial. We aren’t supposed to award her anything for back and neck injuries.”
I was pretty sure this was wrong. While it was true that the lawyers had said the back and neck injuries were “not at issue,” that was a phrase that I could recall uttering in court, too. When I said it, I meant that both sides agreed on a certain fact or point of law. I did not mean that the fact or point of law was not material to the case.
No other juror interpreted the lawyers’ statements my way, and when we checked, we found that the jury instructions were silent on the issue. So, we wrote the judge a question. Turns out, “the lawyer” was right. The judge instructed us to consider any injury from the collision, whether it was an injury to the plaintiff’s back, to her neck, to her shoulder, or elsewhere. The lesson for attorneys: explain to the jury exactly what you mean. Don’t assume they understand your shorthand terms, like “not at issue.”
There were several things that struck me about the deliberations that followed. First, the jurors took their job seriously. More than a handful of times, I heard comments about “making sure we get this right.”
Second, jurors were intensely curious about facts that had been hinted at, but not fully developed. For example, there was a single sentence of testimony about the plaintiff’s impressive weight loss since the accident. If she was heavy at the time of the accident, could that have contributed to her shoulder pain? There was no evidence presented at trial to help answer that question, but that didn’t stop the jurors from wondering.
Also, there was a brief mention during trial that the plaintiff had been clutching the driver’s wheel tightly at the time of the accident, which may have caused her rigid arm to dig into her shoulder socket at impact. Yet there was also testimony that she did not see the defendant’s car coming or anticipate the impact. We wondered: why would she have been gripping the wheel tightly if she wasn’t expecting an impact? Again, there was so little evidence presented on this point, all we could do is wonder.
Jurors were also curious about the legal process. They wanted to know whether the defense lawyer was being paid by the defendant or by an insurance company. They wanted to know how much money the plaintiff’s lawyer would get if his client won. They wanted to know why portions of videotaped depositions had been cut out. And they directed all of their questions to “the lawyer,” even though my usual answer was “I’m sorry, but I really don’t know.” This, more than anything, is why I would caution any litigator to strike lawyers who show up on a jury panel. In a legal setting, nonlawyers are bound to defer to an attorney.
Also striking was the extent to which jurors drew on their own experiences. One juror had a son who had torn his rotator cuff playing minor league baseball. This juror agreed with the defendants’ doctor about the usual cause of rotator cuff injuries. “Rotator cuff tears come from repeated use, not from one traumatic event,” he said.
Similarly, the jurors who had been in car accidents—including myself—saw the collision through that lens. “My accident was worse than hers, and I didn’t get hurt,” one juror said. Interestingly, during voir dire, the judge and lawyers had not asked the potential jurors about their experiences in car accidents in general. They only asked whether jurors had been involved in car accidents where someone was injured. As it turns out, it would have been equally enlightening to hear about the jurors’ experiences in car accidents where no one was injured. After all, a juror who has a car accident where everyone comes away unscathed might be more likely to doubt the alleged injuries of a plaintiff, especially if the juror’s accident was more violent.
When it came to testing credibility, I was impressed that my fellow jurors looked mostly to whether a witness’s testimony matched the rest of the evidence. The jury did not focus on courtroom demeanor, or which witnesses they “liked.” For example, the plaintiff reported to one of her medical providers that the defendant was driving 30-35 miles per hour at the time of the collision. This was not consistent with the barely noticeable damage to her car, and made it appear as if the plaintiff stretched the truth when talking to a doctor. Understandably, this hurt the plaintiff’s credibility, even though all the jurors seemed to agree that she was composed and likeable on the witness stand.
Exhibits & Lawyers
The jurors were clearly not impressed by lawyers’ cross-examination techniques that merely exposed minor flaws in the witnesses’ testimony, without touching on issues that were vital to the case. For example, the defense attorney was in a huff that the plaintiff’s doctor apparently did not have all of the plaintiff’s medical records before he performed rotator cuff surgery on the plaintiff. But there was little evidence showing that this distorted his diagnosis of the plaintiff. Similarly, the plaintiff’s lawyer was appalled that the defendant’s doctor had written two reports, one of which attributed 25 percent of the plaintiff’s rotator cuff tear to the accident, and one of which said the tear had nothing to do with the accident. But when the doctor wrote the second report, he had the advantage of examining the plaintiff, while the first report was based only on medical records. The jury was satisfied that a doctor might modify his opinion, and was more concerned with what his opinion was at the time of trial than what it had been earlier.
One eye-opening aspect of deliberations was the importance of the exhibits that were with us in the jury room. I took on the task of going through the medical records one-by-one, reporting to the group any significant information. (Later, another juror double checked me.) More than the live testimony, this process allowed the jury to create a narrative and a time line that helped with deliberations. For example, our review of the medical records confirmed that the plaintiff had not complained of shoulder pain until long after the collision. It also showed that the plaintiff’s existing rotator cuff tear became no bigger as a result of the accident. Also, we saw that the plaintiff was involved in several accidents over the past 15 years, and visited a lot of providers about a host of medical issues—facts that had been mostly suppressed during the trial. I wondered why the plaintiff’s lawyer would have fought to keep these facts out of the live testimony, only to have them revealed to the jury through the exhibits.
Litigators and judges who struggle with the wording of special verdict forms and jury instructions will be gratified to hear that they, too, were significant. Nonlawyers are not typically as concerned about parsing language as lawyers are, but this group spent significant time trying to understand the meaning of key words. For example, the jury instructions stated that a person with a preexisting injury “is still entitled to recover damages for injuries directly caused by the accident.” We wondered what “directly caused” meant. Later, the instructions said that the plaintiff was entitled to recover “for any aggravation of that injury or condition.” That sealed it. An “injury” was “directly caused” by the accident if it resulted in an “aggravation” of a preexisting medical condition.
In the end, deliberations took about three hours. We probably could have arrived at a verdict sooner, but we didn’t rush because we wanted to “get it right.” We decided that the plaintiff had suffered from back and neck injuries for about four weeks following the accident, which prevented her from working as a nursing assistant during that time. We awarded her a small sum of money that we felt would adequately compensate her for the missed work time and the minor injuries. But we did not think that the low-speed accident had caused (or aggravated) her rotator cuff tear, so we did not award her damages related to her shoulder.
When it came time for the reading of the verdict, the other jurors were disappointed to learn that both of the parties had waived their right to appear. On TV, the parties are always standing in the courtroom when the verdict is dramatically read, and this is what the jury expected. But I wasn’t surprised. A former partner once told me that nothing good can come of appearing for the reading of the verdict. “If you lose, you have to pretend to be earnest when you congratulate the other side, and if you win, it’s unprofessional to scream and shout for joy. Either way, it’s uncomfortable. And if the jury holds it against you if you don’t show up, they can’t do anything about it, since they’ve already made their decision.”
The judge read our verdict to the empty courtroom, and asked each of us, one-by-one, to confirm that we agreed with the decision. When she asked if any of us had a question, I said “How often does a lawyer remain on the jury?” “In my 20 years on the bench, I think you’re the first civil litigator to sit on a civil jury,” she replied. Then she told us that we might get a call from the lawyers, and, if we did, it was up to us whether to talk with them.
Two hours later, the phone on my desk rang. It was the defendant’s lawyer. “Counselor, am I ever jealous of you! You had an experience that any lawyer would love to have,” he said. We talked for an hour.
The plaintiff’s lawyer never called.