I arrived at the courthouse at 8:20am. Jury selection began
around 8:45 and at about 9:05 my jury number was called and I proceeded to meet
the clerk in the hallway with the other called potential jurors; there were
about 30 of us. As we assembled the
clerk informed us that this case was "unusual" and they walked to the
designated court room.
In the court room we were handed a questionnaire to
complete. It asked questions relating to the nature of the case, which was a
medical malpractice suit. The allegation
was that a radiological doctor saw a spot on the plaintiff's liver during a
scan, but said nothing about it. Four
years later the plaintiff was diagnosed with liver (and skin) cancer with a
terminal prognosis. The case would ask
the jurors if the actions by the doctor were negligent and if that earlier scan
would have prevented the terminal prognosis.
Pretty heavy stuff.
After we filled out the questionnaire we were excused to the
hallway as the attorneys waded through our responses. This is the first of
several opportunities the attorneys and judge have to excuse jurors. Some
jurors indicated that they knew the plaintiff or defendant or legal counsel and
were excused. At about 11:45 we re-entered the courtroom (a good 2 hours of
waiting in the hall). I was one of 17 to sit in the juror box (seven would be decided
as actual jurors) to be questioned by the judge and counsel. The rest sat in the "spectator"
section. But as soon as we sat down, we
were excused to lunch.
At 1:00pm we reconvened in the hallway, and at 1:15 entered
the courtroom and sat in our assigned chairs. The judge spent 15 minutes
explaining the role of juries and then asked eliminating questions: do we know
the parties, attorneys or witnesses (a witness list of 40 names was provided). He then informed us that he and counsel had
done their best to streamline this case to make it as quick as possible: Two
weeks. Yikes.
We were sworn to an oath (thankfully, no Bible) and were
asked if we had extreme hardships. Several
hands flew up, including mine. While prepared to serve the average during of
trials (3 days) and perhaps a week, two weeks away from my business and income
would be difficult. Others presented
similar requests to mine, but seemed more "hardship" than mine.
The judge did not dismiss any hardship request from jury. His
reason was logical: Each trial deserves a cross-section of the peer
community. Fair enough. The only one
dismissed was a lady who didn't comprehend English to a satisfactory level. Now
it was time for the plaintiff's attorney to question us.
Here is where it gets dicey. At this time the prospective
jury pool represents a nice cross-section of the community…aside the fact that
most were white, like 22 of the 23 left. Yet, it seemed that this was the time
to whittle that cross-section down a bit further, and the prosecutor wasted no
time. He reminded to answer honestly as he evoked the Founding Fathers and the
Constitution. They, the Founding
Fathers, fought bravely for our Right to a fair trial by a jury of our
peers. Let the appeals to emotion begin!
He proceeded to tell us his job: to persuade us to find for
his client. For truth…
As if we didn't understand what "terminal illness"
meant, he spelled it out for us. How could we possibly not find for the
plaintiff? He went down the line of
jurors and asked each one questions framed from our responses on the
questionnaire:
·
Does your being a doctor influence your partiality?
·
Your friend died last week of liver cancer,
would that affect your decision?
·
You had a biopsy that was "lost" by
the medical staff, would that affect your impartiality?
·
…and so on
Ostensibly the prosecutor was vetting for an impartial jury.
He stated the case in one sentence:
"Could any one of you (us) not blame the doctor who did not follow
the standard protocol in medical procedures?" Of course, it must be that simple.
He asked the group if anyone had a problem with lawsuits. My hand shot up, and I was told he would get
to the mediator later (it was good natured and people chuckled). Once he got to me, my questions were few,
mostly because I was second to last to be questioned and the 45 minutes
allotted for the prosecutor was ending.
After a break, it was the defense's turn.
The defense attorney started asking us as at random. I think
she had specific questions of the two doctors and the lady who had 2
grandchildren in Chicago (and how she would react to them getting cancer).
Ugh. After that, she abandoned the
randomness and went down the line in opposite direction from the prosecutor. I
was second.
"Why do I have a problem with lawsuits" was her
first question. With others, she asked for a little bit about them. Not me. So,
I answered honestly and openly: Some lawsuits are appropriate, but most are
not. "They are win/loss, black/white, zero-sum contests that reward who
wins a debate and does not determine the right or best solution. Whether the
defense or prosecution wins, it won't cure the defendant nor explore possibilities
why this situation happened". As a
mediator, I told her, it was my job to address the problem(s) and interests of
parties, and to represent the process. She tried to praise my job by saying,
"that's great and since you strive for compromise…" I stopped her there and corrected her,
"collaboration. Compromise is a lose/lose outcome". The jurors chuckled and she moved on.
I was asked if I had a problem with attorneys. I said not personally or professionally, but
that some tactics frustrate me. Had I become
partial to one side or the other based on tactics used already? Yes, I said. The
prosecutor appealed to emotion several times. I saw this as a manipulative
tactic and a signal of weakness of facts on the part of his case. She (defense
attorney) asked if I could keep emotion out of my decision, and I say I could
if counsel could keep it out of their presentations. I told her that my partiality was to facts,
not to persuasion.
This case was about money: How much should the plaintiff receive
to cover expenses and loss of income. This is understandable and I wondered how
much of that money (if awarded) would the plaintiff receive after court and
attorney fees.
We took a break. When we came back, the judge dismissed the two
doctors on grounds of…not sure.
While the judge may have wanted a good cross-section of our
community, it was foggy that he did not and clear that counsel certainly did
not want it. The quest in finding an "impartial" jury is glamorous,
but is ultimately a canard and charade. Counsel wants jurors partial to their
side. Each side was allowed to dismiss 5 jurors. It looked like a fantasy
football draft session. Each side huddled with their party and clients. The bailiff
passed back and forth between parties a sheet with the jurors' names. Each side
would cross one name off, pass it to the other side, and so on.
The jury was selected: 4 women (the plaintiff and defendant are
women) and 2 men (one who's daughter in law has breast cancer). I was one of the
last to be dismissed.
My perception the current court system was not improved by
this experience. I think the judicial system in the U.S. is the best, but is
being manipulated by a litigious society spurred along by legal counsel. This case should not take two weeks. Forty witnesses are not needed; show of force
and scare tactics are the motivations for this volume witnesses (38 of the 40
were doctors). The jury consists of no
one with medical experience or knowledge, this is left up to the witnesses. I
would assume some witnesses will be brought in to counter other witnesses. This is doctor versus doctor, with the people
deciding who is right having no clue. So if the jury has no clue or tools to
determine which medical professionals are right, all they are left with is
emotion and their own partiality.
I feel sorry for both parties and the jury.
