Thursday, May 28, 2009

PERSONAL INJURY: A Trial Before the Los Angeles Superior Court, May, 2009

IT’S OVER NOW. The judge gave the twelve-person jury our marching orders yesterday afternoon, and we reached our verdict in rather short order. We were thanked and dismissed. So the story can now be told…

I did mention to friends earlier that it was a personal injury case. That, according to the judge’s admonishment, was as far as I could go. The October, 2006 incident from which the lawsuit arose was a rear-end collision at an intersection out in the Antelope Valley. (I intend to keep names and identifying details out of this, out of respect for the privacy of the many individual involved.) Here’s the sequence of events:

A young man, 18 years old at the time and just graduated from high school, accompanies a friend to a guitar shop to buy a piece of equipment. They part ways, and he leaves the store, presumably to return home. Leaving the parking lot in his 1992 Honda Accord, he makes a left turn onto a major street, and intends to make a right at the first light. Drawn up at the light in front of him is a Mercedes SUV and, in a moment of inattention, he takes his foot off the brake and rams into the back of the SUV at a speed that ranges, depending on which witness you choose to believe, between three and six miles an hour. Okay, maybe a tad more, my memory may not be 100 percent accurate, but at minimal speed. The drivers turn the corner, park, and presumably exchange information. Later that evening, the SUV’s driver’s manager at work instructs him to go in for a check-up, just in case…

The accident took place two and a half years ago. A month later, the SUV driver (the plaintiff in the case) is suffering lower back pain and goes in for a check-up. Another month later, he returns for more medical attention, still in pain. After a number of examinations, tests and scans, he’s faced with the choice between an epidural injection—which he’s warned might be short-lived in its effects—and surgery, to repair what the doctors diagnose as a damaged disk. (I’m simplifying, I know, but I can’t make this about the medical and surgical details. They’re not my expertise, I was just a juror, listening as best I could.)

In brief, then, the plaintiff goes through three successive surgeries, the first two in the attempt to repair the disk, the third a new procedure to replace it with an artificial one. (It’s worth noting that the doctor who performed all three surgeries had never before attempted the replacement. This was his first. He has not done one since. But I’m getting ahead of myself.) In any event, none of the surgeries succeeds in fixing the problem. The plaintiff remains in debilitating pain. He can no longer work, his relationship breaks up, he can no longer spend the quality time he has always spent with his daughter by his first marriage, his life is falling apart…


THE TRIAL BEGINS—THURSDAY & FRIDAY, MAY 14-15

So the Mercedes driver—a successful real estate agent, as we soon discovered—was still suffering from the pain that his three surgeries had failed to relieve and from the depression that his life had fallen into. Attributing the pain to the accident, he decided to sue the driver of the Honda Accord that rear-ended him on that day in October, 2006. Enter the plaintiff’s law firm and attorney, who sent his new client to a local Antelope Valley neurosurgeon (who happens to be a close friend of the attorney—a fact not concealed from the jury.) It was by this time January, 2009, nearly two and a half years since the accident. There ensued more tests, more disagreements between medical specialists, more explanations and recommendations, all of which now became meat for the lawsuit.

The trial began, as we know, in May, 2009. The jury selection process eliminated a handful of potential jurors on grounds that remained, in some cases, mysterious. There were a few, clearly, who did not wish to serve and had devised strategies to ensure their exclusion. One, I recall in particular, was a young man who insisted angrily that he was so biased against frivolous lawsuits—and outrageous attorney’s fees—that he could not render a fair verdict. Another, a woman with an unshakable interest in her own story which emerged, with heavy tears, in response to every question. I was distressed to have been included, at first, as an alternate; and delighted to have been elevated to full juror status before the start of the trial. It took almost a full day, as I recall, for the attorneys on each side to pronounce themselves satisfied by our assurances that we would do our best to listen fairly to the evidence presented, and make a decision based on the facts of the case.

After opening statements describing the nature of the case from each side, the plaintiff’s attorney led off with his first witness, a dapper biomechanical engineer who testified first to his own impressive credentials as an expert in the structures of both the human body and the automobile, and how the two interact in unfortunate ways when they come together in a crash. His major premise was that, while the impact was not apparently a serious one in this case, the upward thrust created by the front end of the Honda ramming down under the higher rear end of the SUV was responsible for the plaintiff’s injury. That force was complicated and rendered devastating, he testified, because the Mercedes driver, at the moment of impact, was seated in a position twisted well forward and sideways to improve his vision of the traffic, to the left, and the pedestrians, to the right. It was that torque of the body, the witness explained with numerous charts and illustrations, that caused the L5-S1 disk at the lower extremity of the spine to be herniated, causing compression of the nerve root as it exited the spinal column on its way down the right leg.

A couple of observations came to mind as I tried to listen to this witness with as much objectivity as I could muster. The first—and this was to be repeated frequently in the course of testimony on this side—was the surfeit of information, the overly detailed and repetitive use of charts and models. The points could have been made far more effectively, in my judgment, had they been made more concisely. The irritation I felt at being hammered with seemingly unneeded repetition was reinforced by the presentation: the three huge, unmanageable black briefcases with which the witness arrived, as if to impress us with the importance of his expertise, the skeleton and spine that he (and subsequent witnesses) dragged around the courtroom, so anxious were they all to be sure that we, the jury, understood every intricacy of the human anatomy. The questioning attorney and his witness seemed completely unwilling to understand that we got it, already. We didn’t need to be told everything five times, in frequently aggravating medical and biomechanical jargon. I was relieved, frankly, when it was the defense attorney’s turn to cross-examine. He asked questions in plain English.

(Okay, impartiality. Deep breath. I try to keep reminding myself to come back to that. It’s not about the presentation, it’s about the evidence. The facts. AND that, behind it all, there’s a truly suffering human being…)

The next witness called by the plaintiff was an orthopedic surgeon, a weighty presence. (Again, I’ll confess that my judgmental eye picked up on something that should, perhaps, have been irrelevant: even I, with my unwanted late-life spread around the middle, am aware of the extra stress that frontal weight puts on the spine. How could a man who specializes in back problems allow himself to become so seriously overweight? My judgment, yes. Irrelevant, yes. Rude, too. Overlook…) The doctor testified, again with many charts and models, as to how the herniated disk was caused, in his opinion, by the collision, and went on to explain the options with which the plaintiff was faced in order to to relieve the pain: medications, including the epidural injection, which was believed to be uncertain and risky (why then, I wondered, do thousands of women use it every day to mitigate the pains of childbirth? This was to become an issue later in the trial) and of short duration in its effects; or surgery, thought to have an 80-90 percent success rate.

During the orthopedic surgeon’s testimony, another issue was raised that was to become a recurrent minor theme as the trial progressed. A couple of months before the car crash, the plaintiff had slipped and fallen on the hard wood floor in one of the properties in his portfolio, and had been examined for, initially, a bad back and shoulder. He returned for medical help a month later, still complaining of shoulder pain—but not mentioning the back; and again, another month later, to be pronounced “100 percent” improved. Even though, as it turned out under cross-examination, this surgeon had only learned about the “slip-and-fall,” as it came to be known, the very morning of his testimony, he dismissed it out of hand as “not a factor” in the patient’s condition…

At which point, this being a Friday afternoon, we recessed for the weekend…


MONDAY & TUESDAY, MAY 18-19

Monday morning loomed, with the arrival of a new witness for the plaintiff, a very lovely young woman who had been called to testify as a highly qualified radiologist with, again, an impressive resume. It was she who had recently, on the attorney’s request—I believe I have this detail right—examined the MRI scan from December, 2006 and diagnosed severe foraminal stenosis, a narrowing of the “window” in the vertebrae caused by a bulging disk, and resulting in the pinching of the root nerve that passes through it. A further MRI scan from July, 2007, if I have it right, suggested a further deterioration of the condition. The witness had also, more recently, discovered another complicating factor in the form of a hairline crack—a “Pars Defect”—in the rear part of the bone, which had not been detected by the MRI, but which showed up in a CT scan, better for examining the “bony detail.” The operating surgeon, we learned, had not been informed nor known about the existence of this defect, which might have implications for future surgery.

This witness was followed by a segment from a recorded deposition from a rival radiologist the defendant’s attorney would be calling on later in the trial. The video was clearly intended to show the future defense witness in a bad light, a clip that suggested him to be cursory and disinterested in the subject of the MRI—as well as the money-hungry recipient of a million dollar a year retirement income from his forensic work and testimony. He did, indeed, in this clip, come off rather badly. The attorney made a great deal of his failure to review the patient’s full medical records, in addition to relying on the evidence of the MRI films.

Having set this up, plaintiff’s attorney brought on what was quite clearly his star witness, the neurosurgeon mentioned earlier and identified as a close personal friend. Without a doubt, this witness had impeccable professional credentials and strong opinions, and it was pretty soon clear that he also had a rather poor opinion of those who did not share them. He was dismissive of orthopedic surgeons as essentially bone specialists, good for “fixing broken bones,” who lacked the knowledge and skills needed to properly treat or operate on a condition that involved “nerve behavior.” He made it clear that radiologists are no more than support staff for surgeons, and that their opinions are valid only subject to review. He dismissed the epidural option as essentially old school and pretty much worthless. He was also unshakable in his view that the plaintiff’s injury was caused exclusively by the collision.

The attorney had his witness walk us through his client’s three surgeries in excruciating—and again, alas, repetitive—detail, and led him into an equally detailed explanation of the patient’s prognosis and future care. His options were limited, the witness explained. The most promising involved further surgery to fuse the two vertebrae. He elaborated on the risks of two different approaches: the first, anterior, approaching the spine from in front, would involve some risks to other organs and blood vessels; the second, posterior, would involve other risks (don’t ask!); and either approach would more than likely incur future surgeries as the vertebrae higher up the spine took on increased stress and deteriorated more rapidly than they otherwise would.

With ample prompting from the attorney, the neurosurgeon then laid out a scenario of life-time treatment that the plaintiff would likely need. In addition to the continuing series of surgeries, this would include routine medical costs, diagnostic tests, home care facilities, physical, psychological and other forms of therapy, medical equipment and an infinite array of drugs. Each item was carefully inscribed on a large yellow flip-chart, along with the mounting sums of money needed to provide it. Nothing was omitted. The actuarily anticipated additional thirty-one years of life for this now forty-six year old back-pain sufferer were accounted for in every smallest aspect of his probable need.

It was on cross-examination that we learned that the neurosurgeon had seen the plaintiff only twice—for the first time in January, 2009, and the second time in March. We learned that the plaintiff had filled out pain rating forms indicating less pain impairment than we had been led to imagine. (These forms included a human body chart with an erroneous left-right identification. Bizarrely, when questioned about the “mistake,” the doctor insisted it had been included purposely on the form, to test the patient’s cognitive skills.) We also learned that the plaintiff himself had made no further appointments with this witness, and had continued with his visits to the surgeon who had performed the original surgeries. The implication, as I heard it, was that the witness’s contact with the plaintiff had been exclusively in the service of the lawsuit. This revelation provided additional strength to my personal impression that the man was testifying out an enormous ego, firmly convinced of his own rectitude and powerful enough to influence others to go along with him.

(At this point, as you can tell, I’m beginning to realize how hard it is to separate out my personal judgments from the evidence I’m presented with. In his body language as well as his actual words, this doctor came across as the epitome of the arrogant surgeon, god-like in power, who can do no wrong and make no mistake in his opinions. Still, my Buddhist teachings encourage me to breathe, take a step back, and practice equanimity…)

Next up was the orthopedic surgeon who had actually seen, diagnosed, and treated the plaintiff, and had performed the three surgeries, none of them successful. For convenience, I called him “the tie guy,” because of the colorfully patterned ties he wore on each of his two days on the witness stand. In contrast to the neurosurgeon who preceded him, he seemed more modest in his approach, and his sense of what could be achieved. He agreed that his surgeries had not achieved the results he had hoped for, and readily conceded that the third—the disk replacement—was relatively untested, though FDA approved; and that he himself had not performed the operation either before or since…

WEDNESDAY, MAY 20…

… the tie guy continued his testimony. Under cross-examination, he confessed that he had not heard of the prior “slip-and-fall” event, nor had anyone from the testifying medical team of surgeons and radiologists informed him of the existence of a Pars Defect. His follow-up surgery, he agreed, would be a spinal fusion.

We had heard a great deal about the plaintiff, and had learned more about his damaged back than any of us had ever known about our own. I’m sure that my fellow-jurors were as curious as myself when he was finally called to the stand, on what was now the fifth day of the trial. And I’m sure that every one of my fellow-jurors shared the sympathy I felt for his obvious pain. His movements were constricted, the suffering was evident in his face and his posture.

(Let me make an aside at this point to wonder what part the Buddhist teaching of compassion played in my experience of this trial. Clearly, given the pain the man was suffering, I could not help but feel for his predicament, and I was much aware, as I sat listening to testimony throughout the trial, of everything I have learned over the years through my embrace of this most fundamental of Buddhist beliefs. And yet I was aware, too, of the civic duty, in this court of law, to set personal feelings aside, insofar as I was able, and to balance evidence against evidence, fact against fact, and to not allow pure human empathy to drive my responses. I was, then, in something of a quandary…)

And there was much to like about the man who now sat in the witness box. Before the surgeries, we learned, he had been a highly motivated worker, who loved his chosen profession. It was his life, as he said with utterly believable passion. Though divorced, he was also a devoted father, who took the time needed to commute a good distance at the weekends to spend time with the daughter he appeared to dote on, as fathers tend to do. With his new partner in life, he had good friends, an active social life, a home they had purchased together, and plans to be married soon. All of which came to an end. The pain, he testified, with genuine tears in his eyes, had changed him into a man who became, in his own words, “a very unpleasant person.”

He described in painful detail the long journey he had taken through the nightmare of diagnostic tests, hospitals and surgeries. He described his deteriorating physical condition, his worsening depression, his inability to work, the humiliation of losing his appetite for life—including sexual activity—and the grief of being deprived of those qualities that had made him a good partner in a relationship, and a good father to his daughter. In all this, he expressed the desire to get back to his work and his life, his plans to re-qualify for a more sedentary position in real estate; the desire to recover. He was a compelling witness, anxious to show us that he had not lost hope.

I am sure that there was no lack of human sympathy for this man amongst the jury members as his testimony concluded. How could it be otherwise?

Next to appear was an evidently competent and experienced nurse whose expertise was “life care planning.” She had worked, primarily with the Antelope Valley neurosurgeon whose testimony we had heard, to develop the plan that the doctor had detailed for us while he was on the stand, and she was brought on to explain how the plan was drawn up and why she considered every part of it to be justified and necessary.

(I don’t know what was going through the heads of other jurors, but it was at this point that I found myself wondering why it was that the whole battery of witnesses for the plaintiff were associated with the Antelope Valley hospital—the radiologist, the neurosurgeon, the orthopedic surgeon, the life care planner—when most of the examinations and all of the surgeries had taken place elsewhere. I might not have worried about this so much, had it not been made clear that the plaintiff had seen the Antelope Valley neurosurgeon only twice, both times after hiring his attorney, and had no plans to see him again. Whence, then, the heavy involvement of the Antelope Valley people, unless for the purposes of the lawsuit itself, to construct the necessary story?

Okay, I kept telling myself: bear in mind the admonishment. Keep an open mind until you’ve heard the last word of evidence… My speculation, I reminded myself, was just that: speculation.)


THURSDAY, MAY 21

On this day, the seventh full day of the trial, the plaintiff’s attorney called to the stand his last two witnesses. The first was an economist, brought out to explain to us just how the financial projections for future costs and loss of earnings had been calculated, with an eye to investment probabilities. She argued, cogently enough, that the projected costs of the life care plan were reasonable and fair, given the needs agreed upon by the neurosurgeon and the life care planner. And finally, his second and last witness was the plaintiff’s former girlfriend, a very nice, attractive young woman who described the life she had enjoyed with the plaintiff and their two young daughters, one his, one hers, in the days before the accident. She testified that the “slip-and-fall”, the month before the car crash, was “not a big deal,” and sadly agreed with the plaintiff’s own assessment that he had become an unpleasant person to live with. Even her daughter had begun to find him “mean.” The two parted ways when he made the decision to leave their two-story house in the Antelope Valley, whose stairs had become difficult for him to manage, and relocate closer to the South Bay area, where his daughter now lived with her mother, and the location—so I understood—of the hospital where future surgeries might be necessary.

And the plaintiff rested.


THE DEFENSE

It was, then, the defense’s turn. The first witness to appear was another radiologist—the one who had appeared so casual and unfeeling in the clip from a videotaped deposition. In person, he seemed quite different, astute and confident, but ready to admit the limitations of his expertise. It was his opinion that the MRI and other tests he had seen showed no convincing evidence to prove that the plaintiff’s back problems resulted from the crash. Indeed, they showed little other than what could be attributed to the normal aging process.

It’s my judgment that the plaintiff’s attorney made his first significant mis-step (at least so far as this jury member was concerned) when it came time for cross-examination. The defense had been generally gentle and respectful in questioning witnesses. True, there were implications behind some of his questions, most of them having to do with the considerable financial interest that might slant the testimony of expert witnesses: we had heard that the highest-paid could earn up to $800 an hour. With research and preparation time, that could soon add up to tens of thousands of dollars. But, as I say, he had been generally quiet and respectful in manner. The plaintiff’s attorney, by contrast, quite soon became hostile, even loud in his treatment of the witnesses. In the case of the radiologist, he made no bones about accusing the man of manipulating evidence, darkening the films to serve his diagnosis of other examples of deteriorating disks. It struck me that the attorney was trying hard for a Perry Mason moment, but never came close: under questioning, the witness remained calm, successfully refuting the suggestion that he had misused the evidence and refusing to sally into areas beyond his expertise, like the causation and extent of the plaintiff’s pain.

To offer an alternative opinion to that expressed by the plaintiff’s biomechanical engineer, the defense brought on its own expert in the area, equally well qualified in the field of automobile and human body structure, and in accident reconstruction—and perhaps even more experienced in the latter. This witness put forward a very different analysis of the crash and its effects. He had studied the defendant’s car—the plaintiff’s was no longer available for inspection by either side, having had minor repairs after the crash, and subsequently traded in—and concluded that the impact had been too insignificant to have caused the injuries claimed; and that, even had the plaintiff’s body been torqued in the exaggerated manner earlier described, the injury would more likely have been to the neck than the lower back.

Was the plaintiff’s attorney aware of how persuasive this testimony sounded to the jury, particularly in contrast to his own biomechanical expert, who had seemed to be really stretching facts to prove a point? Perhaps. In any event, his cross-examination of this witness took on an even more hostile tone, and the hostility provoked nothing but calm, unshaken responses that contrasted, frankly, unfavorably with his questions. It came down, with reference to that “slip-and-fall” incident, to a petty quarrel on the distinction between a “hip” and a “butt”! This small, slightly absurd but significant moment must have made an impression on other jury members, as well as myself.

The defense attorney’s orthopedic surgeon seemed like a practical guy, as impressively qualified and experienced as those we had heard for the plaintiff. He testified that he and his associates had given up doing spine surgery some years before. He was not asked to explain the reasons for this decision, but by now the jury could readily speculate about the risks involved and the uncertainty of success. The doctor described himself as conservative in his practice, and said that his own advice would have been to try the epidural option and other medications first, before venturing into the operation room for back surgery. (Had we come down to a new school/old school controversy among surgeons, I wondered as I listened? And it occurred to me that expertise can be a dangerous thing, creating its own, very possibly blinkered reality that sets up a chain of self-justifying actions. Just a thought…)


FRIDAY, MAY 22

And finally, finally—we have now reached the eighth day of the trial—the defense calls the defendant to the stand. The now twenty-year old driver of the Honda Accord, a college student who had flown in from Colorado for this one day of the trial, had been dressed in court-respectful suit and tie. He answered questions quietly and, I thought, truthfully. No question but that he had rear-ended the Mercedes, at what he estimated was no more than three miles per hour. There was not much, really, that he could say, in response to questions or to cross-examination, other than simply describe the accident. He was not asked to apologize or express regret, nor did he. On cross examination, the plaintiff’s attorney tried to make a big point out of the fact that the windshield of the Honda had been broken by a music stand, whose weight and height the witness was unable to estimate, but at this point the only outcome was to make him seem like he was grasping at irrelevant straws.

And the defense rested, early in the day, allowing everyone to go home to enjoy the Memorial Day weekend.


TUESDAY, MAY 26

My wife and I spent the long weekend down at our cottage in Laguna Beach, and the last thing I wanted to do on Monday afternoon was to do the drive back up the Santa Ana Freeway to Los Angeles, to be ready for the 9 AM start of what we all hoped was to be the last day of the trial.

It proved to be so. First, though, there were the closing arguments. The judge cautioned us before the attorneys began that what they had to say was not to be considered evidence. The facts we were to take into consideration had all been presented. The closing arguments were just that, the attorney’s way of persuading us to look at the facts in a light favorable to his case.

I had anticipated—naïve me—no more than a half hour from each side. What was left to say? Had we not heard it all already? It seemed not. The plaintiff’s attorney, who led off, addressed the jury for a full hour; the defendant’s, for somewhat more. That brought us up to the lunch break, after which the plaintiff’s attorney was allowed another half hour, to dispute what the defending attorney had said. No more time, though, on the defense side…

I really don’t need to say much about their arguments. They were certainly thorough. The substance of their content has been provided to the best of my ability and recollection in the preceding pages. The impression each of them left was surely an important factor, though, in the decision that the jury was to make. Beyond the attention to detail with which he led us back through the facts of the case, the plaintiff’s attorney was at pains to remind us that the standard was not, as in a criminal case, “beyond a reasonable doubt,” but rather a simple “more likely than not.” The problem, so far as I was concerned, was that his presentation was characterized too often by hyperbole and, sometimes, ad hominem attacks. Constructions like “All the surgeons said…,” for example, or that his client “made the choice that everybody would,” served to undercut his argument because they were transparently questionable, at best. There had been surgeons on the witness stand who had plainly dissented. And I myself would not so readily have made the choice for surgery as the plaintiff, given the chance that a simple epidural injection might prove helpful. I’d do everything possible to avoid the operating room. Wouldn’t “everybody”?

Even less productive, to my ears, were his attacks on defense witnesses. “Who,” he asked, disparagingly, of the biomechanical experts, “was the salesman?” Well, in my view, honestly, it was his own guy, the one who came in looking dapper, as a salesman might, and with three briefcases filled with “samples”; the defense’s witness had made a far more modest presentation, and gave his testimony in a far less assuming way. The disparagement did not work in the attorney’s favor.

And finally we arrived at the plaintiff’s bottom line: he was asking for the award of $22 million dollars, including lost earnings, medical and surgical expenses, and other health care needs for the next 31 years, along with compensation for pain and suffering. (I failed to mention earlier that his attorney had “let slip” this figure during the jury selection process. The judge’s instruction that prospective jurors should ignore it could hardly override the fact that the figure had been planted in our minds. It was not, therefore, a surprise when it was finally presented to us; no matter how we might have tried to suppress the memory, it was present in the back of our minds throughout the trial. As such, I think it was less than helpful to the plaintiff.)

The closing argument on the other side was longer, quieter, less dramatic. Certainly the attorney was out to discredit some of the plaintiff’s testimony, most notably that of the star witness on the other side, the neurosurgeon on whose opinions much of the argument and the assessment of damages had been based. Both sides, he said, had their “hired guns,” and it was up to us as to which hired gun to believe. He spent a good deal of time, too, asking us to think critically about the amount that had been requested for damages, suggesting that the financial plan prepared by the plaintiff’s team was a “Doomsday” scenario, and his request a worst-case figure that was thrown out with the expectation that it might well be reduced. Even if we cut the $22 million in half, he suggested, the plaintiff might come away with what they had been wanting in the first place.

After the lunch break, we had our last opportunity to hear from the plaintiff’s attorney. He came out fighting, indignant, offended (“shocked, shocked” I could not help but think!) that his opponent would be so crass as to describe a witness as a “hired gun,” and that he’d suggest such duplicity when it came to damages. As if he thought that courtroom drama would assist his case, he used the flip-chart to create his own “Van Gogh” as he regaled us with a story (one that I personally knew to be apocryphal: fine art is my field) about a painting that had first been declared a fake, and was later sold for “a hundred and sixty million dollars”—eventually tearing his creation down, ripping it up in a mock fury and throwing it to the floor. It was not clear what the point was. He “offered” his client, sitting in court, a “lottery ticket” worth $180 million, asking with dramatic rhetoric whether he’d prefer to have the ticket or his health and happiness. He had begun his rebuttal by telling us a long story about a friend, a reluctant horse, a horse trailer, a rope entrusted to someone to hold onto… and now concluded by passing the “rope” to the jury, begging us to accept the responsibility to hold onto it no matter what…

The judge read us the law and sent us off to the jury room to deliberate.

You will surely have guessed the result by now. I had tried to keep an open mind until this moment, reminding myself whenever the temptation arose to hold off on my opinion until I had heard all the evidence and weighed up all the facts. I think that each of my fellow jury-men and –women had conscientiously done the same. Once settled around our circular table, we chose our “presiding member” (“foreman” is out!) and did a first go-around to find out what we had all been curious to know: what were our fellow-jurors thinking? Every one of them had been thinking exactly what I myself had concluded: that the Honda driver, even though clearly responsible for that moment of inattention immediately prior to the crash, could not be held accountable for the plaintiff’s spinal problems, nor for the pain and suffering he was experiencing.

Yes, we all expressed sympathy for his plight. But there were simply too many other variables. Here are some of the questions and doubts expressed, as we went around the circle: Why the long delays between the accident, the visit to the doctor’s, and the claim? How to explain what seemed like a cabal of Antelope Valley witnesses on the plaintiff’s side—the neurosurgeon, the radiologist, the biomechanical expert, the life care planner—whose collaborative efforts came to sound too much like a “story” concocted to justify the lawsuit? Why use these folks as the chief source of testimony when the plaintiff had spent so little time with them, and had not yet declared any intention to switch allegiance to their health service? How did it happen that some of these witnesses were informed of important details only minutes before taking the stand—and that some of them failed to share important medical information with their “competitors”? Why so huge a disconnect between the actual, treating physician’s plans and estimates for future care and surgery, and the huge expenses projected by the plaintiff? With the test scans showing deterioration in other, adjacent disks, who was to say that the normal aging process was not the more significant cause for the pain? And what about that “slip-and-fall”? Besides, had the plaintiff not made choices that were his own responsibility?

The first go-around produced no disagreement among jury members. None. I put out a caution about listening to our feelings about witnesses and attorneys rather than the facts alone. No one demurred. We checked back on the judge’s instruction on the law. I forget the exact wording, and did not note it down, but the essence was that the defendant’s negligent action in rear-ending the plaintiff’s car had to be a significant contributing factor to the subsequent injuries. We didn’t see it. It did not seem “more likely than not.” The impact was, after all, no more than a tap, and there were too many other variables. The plaintiff’s posture at the moment of impact seemed exaggerated, and we were more inclined to believe in the scenario of a neck injury, if any. We checked on the legal explanation of the wording that had been given us with our instructions, and concluded that the decision we were in the process of arriving at was in accordance with the definitions as we understood them.

Then we voted. It was unanimous. We answered the first question on the verdict form with a “No,” to the effect that we did not hold the defendant responsible for everything that had followed on after the rear-end collision. So the second question, about damages, was no longer relevant. We buzzed twice, to let the court attendant know that we had reached our verdict, and waited while the various interested parties were reassembled. The plaintiff’s attorney, for whatever reason, was not present for the verdict; his daughter, who had served throughout as his associate, requested a jury poll. Each of us in turn confirmed that we agreed with the verdict. No exceptions.

So there you have it. I realize that this is not a full accounting, nor could it be: space is limited, and my memory is selective. I hope at least that it is as fair and honest as I could make it. Writing this narrative, I have gone over much of the material once again in my mind and have asked myself repeatedly if there could have been another outcome. I think not. Beyond the compassion that we felt for the plaintiff and his suffering, I believe that we reached an honest verdict based on everything we had heard. The current debate over the President’s Supreme Court nominee is interesting in this context. I do not believe that “the law” can exist as some kind of objective arbitrator, outside the realm of the human heart. I cannot attempt to argue that our decision, as a jury, was as objective as a legal purist might wish, but I do believe we did the best we could.


(Note: The following comments are personal reflections on the trial, written several days later. They may or may not be of interest…)


The jury trial continues to preoccupy my mind. So many issues raised, so many challenges--particularly in view of everything I have learned over the years from the Buddhist teachings. For example:

MEDITATION: I believe that my daily practice proved a useful resource in a number of ways; first, of course, in simply paying attention, noticing when the mind began to drift, and bringing it back in focus. Then, too, the practice was helpful in keeping the mind open, even at moments when it was tempted to draw conclusions and make judgments. I was fairly readily able to discern its movements, one way or the other, and bring it back to center.

METTA--the exercise of goodwill and compassion. The dharma teaches compassion for all, but I suppose particularly for those who are suffering--in the case, the plaintiff, who claimed to have sustained an (almost) irreversible back injury in the rear-end collision that occasioned his lawsuit. That was obvious and simple: who could fail to feel compassion for a man in severe pain? Compassion, though, does not necessarily include approving his suit. And how about compassion for the young man who ran into him, just 18 years old at the time of the collision, whose life prospects could be seriously impaired by an adverse judgment? And... what about all the others involved? The witnesses, the court attendants, the judge… It was particularly an interesting exercise, to practice goodwill for attorneys and witnesses on BOTH side of the dispute...

... especially when BLAME and GREED reared their ugly heads. The mind recoiled at the staggering sums of money--up to $800 an hour!--charged by "expert" witnesses, who therefore had a vested interest in the outcome. It was hard fair-mind work, to separate out their testimony from their fees. Then, too, the plaintiff's attorney had "let slip" from the start--during jury selection--that he would be asking $22 million in damages, for a rear-end collision that caused no more than a bent fender on the plaintiff's Mercedes SUV. Again, the mind reeled, and needed constant reminders to weigh the evidence rather than the money.

It was necessary, too, to bring some skillful mindfulness to bear on the instinctive, emotional responses--LIKE and DISLIKE--of witnesses and principals in the case; to keep reminding myself that this could not be about whom I liked or disliked, but about whether I could believe their story or trust their testimony. Too often, I watched "like" and "trust" beginning to walk off hand in hand--no less than "dislike" and "distrust."

Also in play was the not-small matter of KARMA--as least insofar was I understand the subtleties and complexities of this concept. To what extent can one person be held responsible for the misfortune of another? I told one of the attorneys, during the selection process, that I don't really believe in "accidents"--but perhaps failed to explain quite what I meant: that every action has its consequence, as much for the plaintiff as for the defendant, whose momentary inattention was clearly the most obvious and immediate cause. But to blame all the plaintiff's pain and suffering for the rest of his life on a single, relatively minor impact seemed to me inappropriate and wrong. Once more, however, it was my job to keep reminding myself to keep an open mind.

As jury members, we were presented with two CONFLICTING REALITIES--I hasten to add, in often excruciating detail. To discern which of these was true, or at least truer than the other, required some skillful discrimination. It's clear that there are different kinds of "judgment"--one that involves personal bias, instinct, intuition and the other reason, discernment, balance. The trick is to avoid the first and acknowledge the importance of the latter, and to hold in mind the difference between the two.

Lastly--and I realize I'm beginning to get long-winded, perhaps repetitive--there was the reminder that the AGING process almost inevitably brings pain along with it. What we, as jurors, learned about the spine and the deterioration of the disks that form the cushion between the vertebrae was an education in physical decay and in the multiple sources of pain that inhabit the vulnerable human body. Pain is virtually inevitable as we grow older; but it's important to remember that suffering--our way of clinging on to pain--is optional. Our plaintiff, now climbing toward his late forties, failed to prove to the satisfaction of the jury that it was the collision, and not in good part the natural aging process, along with other variables, that was the origin of his pain. Watching the process unfold--with my own aching back!--I could not help but be attuned, at frequent intervals, to the accumulation of my own years and the approach of debilitating age. At this personal level of SELF-AWARENESS, THEN the trial was in many ways an important lesson and reminder of the profound value of the dharma.



2 comments:

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david said...

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