In December 2015, I had an experience very few lawyers ever get, especially lawyers who try cases – I got to sit on a jury, all the way through deliberations and the delivery of a verdict. It was fascinating, and I want to document my experience. This will be a long post, mostly because I don’t feel like breaking it up.
I should first note that I think all lawyers should have this experience at some point in their careers. The vanishing jury trial has been well-documented, which means that over time it will become harder and harder for litigants who need trial lawyers to find a lawyer with any experience in front of a jury. Ideally there would be a way for every lawyer – even those who never intend to litigate – to see the system from this side. Maybe 12-person juries should consist of 11 citizens and 1 law student. Maybe third-year law students should “ride shotgun” with the jury, observing but saying nothing. I don’t know logistically how it would work or if it would even be possible. But it’s something I wish existed.
Anyway, I reported as ordered at 8:00 a.m. on Monday morning, December 7, 2015. I live in Cobb County, Georgia, and was summoned before the State Court of Cobb County. Before continuing I should say I have absolutely nothing bad to say about my jury experience or how it was handled. I thought the staff and everyone I dealt with were extremely professional and had a “customer service” mindset. Everyone appreciated that we all had other things we wanted or needed to be doing and that jury service was an inconvenience for just about everyone.
The first thing you have to do is fill out a short questionnaire if you haven’t already done so. A paper form is attached to your summons, and they ask you to either fill it out and mail it in, or else there was an online option. I had already done mine online, so they checked me in, gave me a badge, and then sent me into an assembly room filled with chairs and a TV. After everyone was there, they played a short (less than ten minutes) orientation video that introduced you to the system and the court. The jury administrator introduced herself, thanked us for our service, and gave us instructions for the week – basically a number to write down and call every day, if we weren’t on a jury that day. Then she introduced us to a sheriff’s deputy who was in charge of courtroom security and who briefed us on security in and out of the courthouse, as well as parking. All told, all of this “orientation” probably took about 40 minutes, until about 9:00.
The next step was to herd all of us toward the Presiding Judge’s courtroom. For those who aren’t aware, there are several judges in the Court, and they serve as “Presiding Judge” for some period of time (how long depends on the jurisdiction, but it’s usually a week) on a rotating basis. The Presiding Judge handles a number of different things, including emergency motions and that sort of thing, as well as certain administrative tasks – such as qualifying and swearing in jurors. The Judge asked all of us to confirm that we were U.S. citizens and that we lived in Cobb County. A couple of people weren’t (mistakes happen sometimes), and the rest of us were put under oath and sworn in as jurors. We were also at that time divided into numbered “panels” of 12 jurors each. When we called in each night, we were to pay attention to which panels were being called in.
Next, we were ushered back to the jury assembly room. The jury administrator told us she had a courtroom that was asking for jurors already but had to qualify us first by asking us a question – basically, whether any of us were employed by or held an insurance policy with a particular insurance carrier. It was a widely known carrier, and a number of people raised their hands. She wrote all of that information down, and then called a bunch of names to have us taken to the courtroom for jury selection. While I can’t say I paid particularly close attention, I am almost positive that all of us who were taken were people who did not raise our hands. I also know that particular carrier insured the defendant in that case, so it was pretty obvious to me what they were doing.
Which brings me to my first observation as to what I would suggest changing. While I probably noticed because of what I do, it would not surprise me if at least a few of the other jurors noticed, also. That would make it pretty obvious that the defendant not only had insurance, but had insurance with that particular carrier. My suggestion would be that the jury administrator simply collect that information on the front end, i.e., ask everyone who they have any insurance policies with at all, as part of the initial questionnaire and/or intake when they show up. Then the connection between insurance and particular cases is never apparent.
We were arranged in a specific order in the hall and led to the courtroom. We were then asked to stay in that specific order and then sit in the courtroom gallery. There were 27 of us in all – 12 on the front row, then 12 on the next row, then 3 on the back row. This was to be a 12-person jury, so that gave each lawyer the ability to strike 6 jurors using “peremptory” strikes (which basically means they can strike for whatever reason they want), plus there were 3 extra jurors just in case there was a “for cause” strike (which doesn’t count against either side’s 6 peremptory strikes).
Before the lawyers had a chance, the Court (“Judge B”) had a few remarks and instructions and then introduced the parties and asked if any of us were related to either of them. There was also a standard set of 6 items he had us each provide one-by-one – name, occupation, spouse’s occupation, number of kids, how long had we lived in the county, what part of the county did we live in. Then it was the lawyers’ turn.
The plaintiff’s side goes first. Plaintiff’s lawyer, “Mr. K”, had brief remarks thanking us for our service and introducing us to his client. He also told us that this was a car wreck case, but not much else. He then had a number of questions of the type, “raise your hand if…”. Most of them were about whether you’d been in a car wreck before, or whether you’d been party to a lawsuit before. He then went back and followed up with each person individually to ask about their specific circumstances. When he came to me (I was juror #10) I remember him asking me specifically about my practice and whether I did any personal injury work (I do not). I would say his time lasted about an hour, maybe a little more.
Then the defendant’s side gets a turn. Defendant’s lawyer, “Ms. M”, echoed Mr. K’s remarks thanking us for our service, and she also introduced us to her associate, “Mr. D”, and her client. She also told us she would have fewer questions because Mr. K asked about a number of things she would have asked if he had not. She did ask some specific questions about whether we had been to physical therapy and why, and whether we had experience with certain specific types of treatment. I would say her time lasted maybe 30-45 minutes.
There were apparently no strikes “for cause”, and the Court used a “silent strike” procedure. Basically we all sat quietly while the clerk handed a list of jurors back and forth for the lawyers to mark their strikes on. When the process was finished, Judge B called the lawyers to the bench for a brief conference, and then the Judge called the names of those of us who had been selected to serve. Everyone else was sent back to the jury assembly room. The Judge seated us in the jury box, thanked us again, swore us in, and gave us some more instructions – basically, don’t talk about the case, don’t investigate any aspect of the case, don’t visit the scene, that sort of thing. At that point it was shortly before noon, so the Judge excused us for a long lunch, with opening statements to begin right after lunch.
The plaintiff’s opening statement told basically the following story: Plaintiff was stopped at a red light. Defendant wasn’t paying attention as she approached the red light from behind, swerved at the last minute, her car clipped the rear right corner of the plaintiff’s car, she overcorrected, and then her car clipped the front right corner of the plaintiff’s car. Plaintiff acknowledged that she declined medical treatment at the scene and went directly to her mechanic rather than seeking medical treatment. She also admitted she didn’t seek any medical treatment for about three and a half weeks, when she finally went to an urgent care facility and received a prescription for pain medication. However, she claimed her injuries from this wreck (which happened in 2011) had led to a debilitating condition whereby she had constant back and leg pain. She had been treating with a pain management specialist whose offices were two hours’ drive from her house since 2005 but her treatments had become more frequent starting a year or so after the wreck. Mr. K did not mention a specific damages figure in his opening statement, however.
Mr. D delivered the opening statement for the defendant. The defendant had stipulated as to liability, which meant the only issue for resolution by the jury would be the amount of damages that should be paid. Mr. D told us how Plaintiff had a history of car wrecks that included one in 2008 (before this one) and in 2012 (after this one). On both of those occasions, she had sought medical treatment – ambulance from the scene to the ER for one of them, visit to urgent care within 24 hours for the other. It was true that her trips to the pain management clinic had increased in frequency of late, but all that was after the 2012 wreck, so their argument was that the 2012 wreck caused whatever her serious issues were, not the 2011 wreck – or at the very least, you can’t tell, which means Plaintiff can’t carry her burden, which means she loses.
A couple of observations about opening statements. First, from now on when I have a jury trial, I will thank them perfunctorily for their service during voir dire, but then I won’t mention it again. By the time it was time for opening statement, I personally was itching to get to the facts of the case, and I found the additional mini-speech thanking us for doing our civic duty to be tiresome and a waste of breath. Second, I found it curious that Plaintiff did not ask for a number in her opening statement – though on reflection, that might not have been a bad choice. If she puts a number in her opening, she risks two things – locking herself into that number, and (if it’s “too high”) alienating the jury before evidence opens.
One other interesting observation, at least to me – as it turned out, the opening statement was the only thing Mr. D (who was clearly the junior lawyer) actually handled in the case. He did a really good job, but I was surprised Ms. M let him take what I usually consider to be a critical piece of the trial, especially since he didn’t handle any of the rest of the trial.
Anyway, evidence opened next. First up was Plaintiff’s pain management doctor. The vast bulk of the evidence that came in was in the form of records from this guy’s clinic, and Mr. K went through them in painstaking fashion – detailing the date of each treatment and what was involved, and using the doctor to explain what the treatments were for. Personally, I think he could have benefited from a little more preparation here. For example, I would probably have taken the time to put together my own summary of what he was trying to show. I would probably have also found a way to engage the jury visually – for instance, diagrams of the treatment and what was being treated, and maybe a summary or timeline or something to put on a projector screen. As it was I think the doctor testified for more than an hour and a half solid, with no visual exhibits or other effort to engage the jury other than through the dry question-and-answer exchange. I think that was probably not the most effective way to present this doctor.
One thing I noticed as the doctor was testifying was that the frequency of treatments seemed to pick up dramatically after a year and a half or so. The cynical trial lawyer in me then made a note to question when the lawsuit was filed, to see if the jump in frequency of treatments coincided with the filing of the suit. I never did find out the answer to that question but I remember making the note.
On cross-examination the doctor admitted pain is necessarily subjective and there is (currently) no way to measure pain objectively. The doctor also admitted to being aware of the 2008 accident but denied he was aware of the 2012 accident – which was really curious, given his records indicated follow-up treatment specifically for the 2012 wreck. I think he probably just got confused.
One other major point scored with the doctor on cross was comparing an MRI result in 2013 (after the 2012 wreck) with one taken in early 2009 (after the 2008 wreck). Both showed a virtually identical injury, which powerfully suggested the injury never really healed the first time around.
Plaintiff herself was the next witness. She testified that she had never been treated for lower back pain prior to the 2011 wreck, but now that was her primary source of pain and primary reason for seeking treatments with her pain management doctor. She told the same story of the wreck that her lawyer told in opening statement, adding that she declined medical attention at the scene because “adrenaline” kept her from feeling any pain. She also noted that her pain management doctor was 2 hours away, and she usually would see him late in the day, after a full day of work as basically a traveling saleswoman, so her pain would typically be somewhat elevated by the time she got to him, from aggravating her injured conditions during the day.
She testified that she had won awards for her work performance in each of the two years prior to the 2011 wreck, which she had on display on her counsel table during the trial. She said she wasn’t as capable of face-to-face contact with her clients and that her personality had become more negative, which she thought impacted her pay (her raises had slowed down, and her bonuses had decreased). In the middle of that line of questioning, we broke for the night, and when we returned the next morning and she continued, she and Mr. K had obviously spent some time preparing, since she was able to testify with a little more detail about how her rates had been 5-10% before 2011 but were in the 2.5-3.5% range since then. She was also able to show a bonus of $14,000 awarded in early 2011, but then bonuses between $900 and $3,600 each year since.
She described the 2012 wreck as a fender bender with no injuries, and she testified she didn’t even treat with her pain management doctor until 3-4 months later. She also testified about a procedure her pain management doctor could try on her that she thought would work, but it was going to be expensive and hadn’t been scheduled yet.
On cross-examination, Ms. M started with the details of the 2011 wreck and got her to confirm no windows were broken, the airbag did not deploy, and the car was drivable. She also challenged the assertion that she had never been treated for lower back pain by going through records from when she first started with her pain management doctor, establishing that she had presented with back pain as early as September 2005 (and several times thereafter, including her ER visit after the 2008 wreck). She also admitted she had been prescribed a number of pretty heavy-duty drugs, which suggested something I had already wondered about (more on that in a minute). Ms. M also presented a record from her family doctor from just a couple of months after the 2011 wreck from when she sought treatment for a sore throat. That record affirmatively indicated Plaintiff was “negative for low back pain”.
Plaintiff came across to me as earnest and not obviously lying or overreaching, but at the same time I thought her story sounded less than credible – blaming lost income on a conveniently-timed wreck instead of the global economic catastrophe, for example. I had also started to wonder if she hadn’t become at least partially dependent on her pain management doctor to continue prescribing her all these high-grade pain medications (Percocet was just one of many that she kept taking). At the end of her lawyer’s direct examination she said she couldn’t even “pick up a load of laundry without excruciating pain”. Yet as I watched her throughout the trial, I noticed she never ever fidgeted in her seat while she was sitting through the trial, had no difficulty or expression of pain when she stood up or sat down, and generally did not behave like someone in constant “excruciating” pain. Curiously, I found out later that several of my co-jurors independently made the same observation.
I also noticed one other thing that may be a little too subtle for most, and to be fair it may not even mean anything. But twice she was testifying about physical therapy that her doctor had prescribed for her, and she referred to the exercises as “modalities”. Regular people don’t use words like “modalities” in that way (or at all). Her use of that word – correctly – indicated to me she had spent just a little too much time studying her records and treatments and (perhaps subconsciously) she seemed to be trying to sound technical so that we would believe her. My takeaway from that is that I am going to do everything I can to make sure my witnesses sound like themselves and sound like they ought to sound. If I need a lay witness to use terminology that is outside his/her “normal” vernacular, I’m going to be sure I explain why we’re using those words.
Anyway, Plaintiff had one more witness – the mechanic. His testimony was really short and really didn’t add much other than the foundation for Plaintiff’s claim for the damage to her car. I don’t even remember if the Defendant cross-examined him.
The Plaintiff rested, and the Defendant immediately rested without presenting evidence. A bold move, maybe, but in hindsight, probably a pretty low-risk strategy. Frankly the Plaintiff’s case sounded really shaky already, and I think they were banking on the fact that by not putting up any evidence, they were telling us they didn’t see the need to rebut her case. I think they were probably right.
At that point it was late morning on Tuesday, so Judge B sent us to another extended lunch. We weren’t told this, but I happen to know this was done so Judge B and the lawyers could conduct a “charge conference”, where the Court decides what law will be “charged”, or given to the jury. When we came back from lunch, it was time for closing arguments. Normally the Plaintiff would have the right to “open and close”, that is, go first and then have a chance to reply to Defendant’s argument. However, since Defendant had put on no evidence, under Georgia law they could claim the right to open and close, so Defendant went first.
For the first time, we finally saw use of the AV technology, as Ms. M put a PowerPoint show together for us. She started by talking about the burden of proof, as a backdrop for her argument that Plaintiff couldn’t carry her burden. She pointed out the fact the 2011 was a comparatively minor accident; the gaps in her treatment; the degenerative changes in her condition over time; and the 2012 accident as an intervening cause of her injuries. She reminded us about the two MRI’s showing no change in her condition. Her theme was “actions speak louder than words” and she talked about the gaps in her treatment again. She also noted that her August 2011 bonus (which was semi-annual) was based on the first half of 2011, which mostly took place before the wreck – so how could the wreck have caused her poor performance?
Plaintiff focused on the facts of the wreck itself. The Defendant was on her phone. There was $6,700 worth of damage to her car – which was a used Honda Accord, not a nearly-new Lexus (for example). Plaintiff acknowledged her previous relationship with her pain management doctor but pointed out she had sought no treatment for more than three years before the 2011 wreck – three years which, it turns out, were strong performance years for her at work. Plaintiff’s theme was “something happened” to change all that, the “something” obviously being this wreck. Plaintiff spent a little bit of time talking numbers, pointing out that the records she had introduced showed actual damages (including the doctor bills) approaching $70,000, which doesn’t even begin to include pain and suffering. On the latter point, Mr. K threw out a couple of numbers in the $150,000 to $200,000 range but didn’t dwell too much. I think he was (appropriately) afraid that if he pounded on big numbers too much, the jury would get the idea that his client was just being greedy.
Defendant did not offer rebuttal, so the Court moved on to jury charges. The charge was fairly brief and straightforward. I wrote down a couple of notes regarding how damages are calculated, even though I already knew that stuff. The charge probably took about 15 minutes, and then we were sent out. We were told to wait until the evidence was brought to us before deliberating. That took a lot longer than we would have guessed – probably 30-45 minutes – but then we were able to get started.
The first order of business for a jury is to elect a foreperson. Perhaps naturally, all eyes looked to me, but I declined. I told them I had an opinion that I was all too happy to share, but I didn’t want the lawyers or the Judge to think I was trying to influence the process because of some specialized knowledge of the system that I might have. The other jurors were appreciative of that and we didn’t have too much trouble electing someone else.
Deliberation was actually pretty quick and frankly a little brutal. Most of the room didn’t want to give Plaintiff anything, thinking she was being greedy. Some wondered, as I had indicated before, if she hadn’t become dependent on the pain meds. I tried to let the debate go on for a bit, to give everyone a chance to speak, before I spoke up that I thought we couldn’t possibly give zero if the Defendant had admitted liability – at the very least we needed to award the damages for the car. I also pointed out that she had had the three years of no treatments leading up to the wreck.
Other jurors were receptive to my thoughts, so then we wrestled with how much to give her. I went though the medical bills and totaled up the treatments and prescriptions she had between the two wrecks and added the car repair, and the total was about $8,000. I said maybe we should start with that and then give her a little bit for pain and suffering. Most agreed with me and suggested a total of $10,000. We did have one holdout who thought she deserved a lot more, so we had to wrestle with the final number a little bit. In the end we settled on $12,000 by consensus, so that’s what we awarded her.
Curiously, though unsurprisingly, the legal fiction that insurance – by not being mentioned in the courtroom – is somehow left out of everyone’s consideration turns out to be just that – fiction. Indeed, several people picked up on the fact that we were all asked about a particular carrier right before we were first sent to Judge B’s courtroom. That said, I can honestly say no one in the room seemed to base his/her decision on the fact the insurance carrier would ultimately be paying most of the judgment. The grand fear is that jurors could award a huge amount of money because there’s a faceless corporation footing the bill, but at least as far as my jury experience goes, that fear is unfounded. I’m sure it happens and I’m not saying it’s a bad thing to make an effort to keep mention of insurance out of the courtroom, but I also think we as trial lawyers shouldn’t be so naive as to think that that actually works the way we idealize that it should.
I did get a chance to talk with both lawyers after the trial was over. Mr. K wanted to know if I thought the decision to shy away from mentioning numbers in opening and closing impacted the outcome, and I told him I didn’t think so. Ms. M gave me some insight into the pretrial negotiation, but all she really did was confirm what I guessed after I knew the numbers – the case could not possibly have been settled. I’m sure the insurance company put a nominal value on the case – probably $10k-$15k – but the actuals were several times that amount all by themselves. Since it couldn’t be settled, it had to be tried, which means the system did what it was supposed to do. The only thing Mr. K could have done would be to not take the case in the first place, but of course that’s a difficult decision where you’ve got such a clear case of liability – one reason among many why I generally don’t do personal injury work.
In closing, Judge B gave us a letter, from which I’ll quote here:
Thank you for your service as a juror in the State Court of Cobb County. Your role as a juror is the foundation of our justice system.
I am hopeful that your experience as a juror was a pleasant one. I understand that service as a juror may be inconvenient; however we make every effort to reduce the time jurors are away from their families and employment. Please feel free to contact my office should you have any suggestions as to how we can improve the jury experience.
Thank you for fulfilling this civic duty and making it possible for others to seek justice in the court system.
An obvious and somewhat vanilla form letter, but they were individually addressed and he signed them all by hand, and he delivered them to us in the jury room after the trial personally and shook each of our hands, and there is no doubt in my mind he was sincerely appreciative. As I said, I don’t think I could have asked for a better experience as a juror, and my hat is off to the people who work for the Court to make it happen that way.
Finally, like I said at the beginning, this was a hugely important experience for me, one I will hopefully carry around with me for the rest of my career. I don’t think I’ll ever look at a jury the same way again.