The Trial, Part VI: THE VERDICT

(A note to my fellow jurors, who might have followed this narrative: THANK YOU for the collegial spirit that we managed to create amongst us as a jury. I valued my time with you, and wish you well. I'd also truly appreciate your thoughts and comments, especially where we might disagree. You could add them in the form of a comment on the blog entries, or directly via the email address you'll find below my picture in the right-hand sidebar.)

We just returned from a long Memorial Day weekend. Ellie and I spent it 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 5 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, the closing arguments. The judge cautioned us before the attorneys started that what they had to say was not to be considered evidence. The facts we were to deliberate had all been presented. The 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. The substance of their content has been provided in the preceding pages. The impression each of them left was surely an important factor, though, in the decision that we made. Beyond the thoroughness 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 untrue. There were surgeon witnesses who plainly disagreed. And I myself would not so readily have made the choice for surgery over the chance that a simple epidural injection might prove helpful. I’d do everything possible to avoid the operating room.

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, the one who came in looking dapper, as a salesman might, and with three briefcases filled with “samples” looked much more like the salesman than the defense’s witness, who made a far more modest presentation, and gave his testimony in a far less assuming way. The implied disparagement bounced back on him.

And finally, the plaintiff’s attorney arrived at his 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. (I failed to mention earlier that he 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 it had been planted in our minds. It was not, therefore, a surprise when the figure was 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 assessment of damages was 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 scenario prepared by the plaintiff’s team was a “Doomsday” scenario, a worst-case demand 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 board to create his own “Van Gogh” as he regaled us with story (and one that I personally knew to be apocryphal) about a painting that had first been declared a fake, and was later sold for “a hundred and sixty million dollars,”—eventually ripping his creation down and ripping it up in fury and throwing it to the floor. 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. He told us a long story about a friend, a reluctant horse, a horse trailer, a rope entrusted to someone to hold onto… and ended up handing the “rope” to the jury, entrusting us to hold onto it no matter what… And the judge read us the law and sent us off to the jury room to deliberate.

You will surely have guessed the result long ago. 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 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 were thinking exactly what I myself had concluded: that the Honda driver, even though responsible for that moment of inattention, 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. Some questions and doubts expressed, as we went around the circle: Why the long delay between the accident, the visit to the doctor’s, and the claim? How to explain what came across as an Antelope Valley cabal of the witnesses on the plaintiff’s side—the neurosurgeon, the radiologist, the biomechanical expert, the life care planner—which sounded too much like a “story” concocted to justify the lawsuit? Why use them as the chief source of testimony when the plaintiff 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 a 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. 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 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 ensued. 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 fair and honest. 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.