July 2nd, 2010

July 2nd: A Day to Declare Independence (And Celebrate Juries)

Each of the last two years I have used July 2nd as a jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown. John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write those two posts about why the day is so important to the jury system. So here they are:

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

June 28th, 2010

My Turn In the Jury Room (And Who Should Sit Jury Duty On What Kinds of Cases?)

In 1997 I sat as a juror. And a post by Scott Greenfield on whether criminal defense attorneys would make good jurors in a criminal case, and the fact that I picked a jury last week and just re-told my experience to opposing counsel, leads me to today’s reflection on whether personal injury attorneys could sit fairly in a personal injury case.

The question can equally be asked, of course, about whether doctors and nurses can sit in malpractice cases, and you can follow this through for any other profession.

But first my experience: This was a criminal prosecution, the nuts and bolts of which were that two guys were walking down the street in midtown Manhattan peering into cars, while being trailed by two undercover cops watching the peering. One was on trial, and we weren’t told why the other wasn’t.

There were about 30 jurors in the pool, and I was the very last one to be questioned. And this was the interesting part: There wasn’t a single question on what type of law I practiced. Calling the questions perfunctory would be an insult to the concept of brevity.

The trial lasted two days, and consisted of the two perps stopping at a fish truck — yes a fish truck — and the cops watching from a neighboring deli while the defendant and his buddy tried to make off with the shrimp. In the middle of the afternoon, in the middle of midtown. They did not win any awards for genius that day, or likely, any other day of their existence. One cop broke the tip of his pinkie grabbing the guy that was standing trial. That added a charge.

When we got the jury room, I spoke quickly before anyone had a chance to voice their opinion and dig into any position. I’ve had juries that were out deliberating for days, and I didn’t want anyone to stake out a position quickly, because changing minds after they are made up can be difficult. I asked my fellow jurors to simply comment on one piece of evidence that they thought was interesting, without saying whether the guy was guilty or not.

That discussion gave him 30 minutes of deliberations, which I think we all later agreed was 29 minutes more than he deserved, but it was good to flesh out the evidence that we heard. Everyone wanted to do the right thing.

Afterward, I asked both the prosecution and defense counsel why they kept me. The prosecutor said she wanted someone that was smart for a slam-dunk case (though all she knew was that I was an attorney). Defense counsel said he liked lawyers, because lawyers were always looking for loopholes.

It was, I think fair to say, an experience any trial lawyer should go through. It’s good to appreciate on a first hand basis what happens on the other side of the jury rail.

My biggest reaction to the questions and answers that flew during trial, however, was the urge to leap over that rail, push the lawyers out of the way, and say “That’s not how you ask a question. Here, let me show you…”

But what of PI lawyers sitting on PI cases and docs/nurses sitting on malpractice cases and crim defense lawyers sitting on criminal cases?

My experience, both as a juror and as one that has spoken with thousands of picked and potential jurors, is that most people that get picked truly want to do justice. Most people. Though their visions of justice may vary quite a bit.

And the trick is, obviously, ferreting out the bad apples, which is to say, those whose ideas of justice may be vastly at odds with your client’s. Can the doctor sit on the malpractice case or the PI lawyer on the PI case (or the criminal defense lawyer on the criminal case)? Sure. Why not?

Do you think that plaintiffs’ personal injury attorneys would be biased in favor of all plaintiffs? If you thought that you would be very wrong. Because we all see something that the public doesn’t see. We see all the reject cases that aren’t worth a damn. There was no negligence, or if there was, it didn’t cause an injury. Of if there was, the injury was too small to make it worthwhile. Or the potential client wasn’t credible to us. Reject, reject, reject. In the malpractice realm, I reject a healthy 95-98% of the time.

A juror has to know how to reject a bad case, and this is something we are used to doing. In fact, if we don’t do it well, we face bankruptcy because it is our time and money that is being spent on the matter. The contingency fee system can be harsh that way. This tends to make us rather objective in evaluating suits.

And the doctors? Some can sit, some can’t. Some are so wrapped up in the politics of medical malpractice “reform,” drinking the insurance industry Kool-Aid, that they are too biased. Others have no problem sitting, as they often see the screw-ups of others, and some have been angry about those screw-ups.

So you gotta ask those potential jurors, since you only have three peremptory challenges to work with here in New York, to look inward. “How will you feel,” you ask the doctor, “To tell your co-workers that you brought back a verdict against a doctor, assuming you think the verdict is justified?” And you watch the reactions, the hesitancies, and listen for the word choices they make. Some are comfortable with it, some not.

Jurors pick themselves. Some can do it when the issues are close to their profession, some not. There’s little point being coy about it and ignoring the elephant in the room. You ask.

In Greenfield’s case, the judge excused high profile defense lawyer Gerry Shargel. Why? Mayor Mike Bloomberg sat jury duty. So did Rudy Giuliani. And Chief Judge Judith Kaye. No one is excused. If the lawyers think the person can’t be fair, so be it, but the idea of dismissing people just because of their occupation is something we don’t do in New York anymore. Because some of those potential jurors might turn out to be damn good ones.

May 21st, 2010

Rand Paul: “Sometimes Accidents Happen” (And the Lesson for Jury Selection)

Kentucky’s Republican Senate candidate Rand Paul was critizing President Obama for critizing BP for the gulf oil spill, and this spilled out of Paul’s mouth:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,” Paul said, who is a darling of the Tea Party movement.

And that brings us to personal injury law since, on a day-to-day basis, we deal with wrecks and “accidents” all the time. And that brings us to the issue of selecting juries.

Some folks, like Paul, are quick to dismiss “accidents” as if they are a part of nature. And that is because the word is used in two completely different contexts; accidents that are avoidable and accidents that aren’t.

Take this example: A deer bolts onto a highway at night and collides with a car. I think that, in most circumstances, people would attribute that to an act of nature. But after the first “accident” a second car plows into the first. Is that also part of the “accident”?

Now we have multiple causes. And the primary cause of the second wreck — note that I don’t use the word accident here — is that the second car was simply following too closely to the first. This is the case in almost all rear-end collisions. Each driver has a duty to anticipate a problem and must be prepared to stop in time.

The operative legal premise here is this: Could the “accident” have been avoided with the exercise of reasonable care?

Vetting the Rand Paul types in jury selection is pretty critical, as they are more likely to simply shrug their shoulders with an “accidents happen” attitude. As we can see in the BP fiasco in the gulf, Paul doesn’t appear interested in whether the oil spill was avoidable with the exercise of due care.

So what does the savvy trial lawyer do to find these people in the jury pool? Answer: Let them talk. Ask open ended questions, not the yes-no types. Jury selection isn’t about finding jurors with the same ethnicity as your client, but finding out about their underlying value system.

January 25th, 2010

Should Obama Sit Jury Duty?

So news comes out that President Obama has skipped jury duty in Chicago. Is that a good thing?

Here in New York, it used to be that there were exemptions from jury duty for lawyers, doctors, and a panoply of others. Everyone and their brother seemed to have a legit excuse. The legislature killed that off, and now all the exemptions are gone. Rudy Guiliani famously sat jury duty while mayor, as did Mayor Michael Bloomberg and former Chief Judge Judith Kaye.

But how about the President?

On the plus side of having him sit, it promotes jury duty and the concept that power is dispersed among the people. The distribution of power among the citizens and away from the Crown was the very essence of the Revolution. The Declaration of Independence, once you get past its magnificent opening, leads into its bill of particulars regarding the usurpations of power by King George with this:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States

And among that list of usurpations is this:

For depriving us in many cases, of the benefit of Trial by Jury

And this is not just enshrined in the Declaration, but the Bill of Rights. The Sixth Amendment protects those charged with crimes and the Seventh Amendment guarantees juries in civil trials:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

There is little disagreement among the people of the need for the dispersion of power — though oddly there are conservatives that wish to consolidate power among the few and call this “reform.” This concept of greater government power has thus far been widely rejected. (I never really understood how conservatives that preach limited government wish to endow it with more in this circumstance, but that is an issue for another day.)

Notwithstanding the noble goal of jury duty, any lawyer that has spend 12 seconds in the jury selection process knows that many people want to talk their way out of it, even personal injury lawyers. But I have sat, as has my wife and my brother.

On the flip side of having Obama serve jury duty is the security problem, not just for the courthouse but for the nation as a whole as it requires the man with the button to be in one place for an extended period. Leaving aside the issue of distraction for the other jurors, the forcible placement of the President in one place could turn into a life and death problem for all of us.

So, while I am a huge fan of the jury system, when it comes to the top honcho, I believe that deferment until he leaves office is appropriate.

December 28th, 2009

Would you rather have a law professor on a jury or a practicing litigator?

Over at Concurring Opinions, law professor Adam Benforado asks this simple question, after being called for jury duty:

For trial attorneys out there, I’m curious: would you rather have a law professor on a jury or a practicing litigator?

The question isn’t really framed well. It is a popular misconception that lawyers get to pick the jurors that we desire. But it doesn’t work that way.

We don’t pick the ones we do want, but rather, do everything we can to make sure the lemons don’t ever see opening statements.

Thus, peremptory challenges get used on the the potential jurors sitting with their arms folded and a scowl on the face, who nevertheless answers all the questions appropriately about how fair they can be.

You do your best to dump the bad apples and are stuck with the rest. That’s jury selection in a nutshell. Picking between practicing lawyers or law professors isn’t a choice many will ever get, and will be superceded by a million other factors.

But all other things being equal, I would pick the one I most want to have a beer with.

For more on that, see: Who Sits Jury Duty? (The Turkewitz Beer Test)

Links to this post:

How to get bounced on peremptories
Prospective jurors, listen up: if you want to get out of serving you should try to give “correct” answers in voir dire, the kind that don’t result in a for-cause removal, but do it with folded arms and a scowling expression [Turkewitz]

posted by Walter Olson @ January 17, 2010 12:16 AM