Category Archives: Inside The Jury Room

 

March 31st, 2009

NY Court Of Appeals Tosses Out Verdict Due To Failure to Poll Jury


New York’s high court today threw out a plaintiff’s verdict in a medical malpractice case because the court refused the request of the plainitff to poll the jury at the time the verdict was rendered.

The decision in Duffy v. Vogel, authored by our new Court of Appeals Chief Judge Jonathan Lippman, came after a plaintiff’s verdict of $1.5M in a medical malpractice case. He wrote:

In New York, we have long recognized that affording jurors a last opportunity individually to express agreement or disagreement with the reported verdict, is, when requested by a litigant, indispensable to a properly published, and thereby perfected, verdict.
…
Inasmuch as, under New York law, the honor of a request for a jury poll is a necessary condition of a “finished or perfected” verdict, it follows that in this State’s courts the failure to poll a jury may never be deemed harmless. Harmless error analysis is a judicial device employed to sustain an already perfected verdict, not to perfect a verdict in the first instance.
…
The proper publication of a verdict in open court, so long deemed essential to assure the integrity of the verdict, is not to be cast aside as a mere formality on the theory that jurors are prospectively bound to act in accordance with their verdict sheet signatures.

The dissent would have held this to be harmless error.

 

January 13th, 2009

New York Brings (Some) Clarity to Jury Selection Rules

New York’s jury selection rules have always appeared a bit Byzantine. They vary from county to county and at times from judge to judge. In one place you use the “Struck” method and may question 30 or more jurors at once, and in another you question just the first six (White’s Rules). Sometimes lawyers immediately replace jurors when they are excused for cause or consent, and other times you wait until the end of the round when you do the peremptory challenges. Most places the plaintiff and defendant alternate each round as to who must exercise challenges first, and in some places the plaintiff is forced to go first in every round.

It was enough to drive an otherwise sane lawyer batty. But now some of that may change, as Chief Administrative Judge Ann Pfau has issued this guide for judges and lawyers on how to implement the rules. Are they standard now? Of course not. But with a guide, that everyone should print out and bring to jury selection, at least things may run a bit more orderly because the issues are more sharply defined.

Oddly enough, our courts still can’t seem to standardize our method of selection, as the guide tells us:

The Uniform Rules for the Trial Courts provide for two methods of jury selection — White’s or Struck. Counsel shall be given the opportunity to select the method they prefer, provided that the court will select the method if the parties cannot agree.

You would think that, after a couple hundred years of practice with the jury system, we could at least resolve the simple issue of picking a system of picking.

I also have an issue with the timing of when potential jurors are replaced, either on consent or for cause. Do you handle those two categories on the spot (and then immediatey fill the vacant seat) or wait until you are off in the hallway just moments before you exercise peremptory challenges for cause? As per the guide:

In each round, consent excusals and challenges for cause of jurors ‘in the box’ shall be exercised prior to exercise of peremptory challenges and as soon as the reason therefor becomes apparent. When a juror is removed from the box for cause or on consent, that juror is immediately replaced, and questioning reverts to counsel for the plaintiff.

The problem with this system is that, when you kick someone right after they’ve uttered the magic words (“Does your client think the jury system is a lottery?”), you’ve also given information to the rest as to exactly what kind of story they need to tell to be bounced from jury service. While most folks can figure this out pretty easily, there seems to be little reason to telegraph just how easy it can be.

There are good parts as well. For instance, I will no longer be told to question 30 jurors in one hour, as I have been told to do on occasion. According to the guide:

Instead of setting time limits for questioning, the recommended practice is for the judge or [Judicial Hearing Officer], based on the consultation, to set only a general time period after which counsel should report on the progress of voir dire. In a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire and, if requested by the judge or JHO, periodically thereafter until jury selection is completed.

The guide also gives sharp definition to the Struck method, which has varied from place to place with respect to when challenges are used in various rounds. The court says that, if using this method, there is just a single round of challenges, to be exercised only after you have enough cause-free panelists to fill the jury:

After the general voir dire of the full panel, counsel’s questions focus on the first 16 prospective jurors in the randomly selected panel. If any prospective are excused by consent or cause challenge after both sides have questioned the first 16, the questioning proceeds with the prospective jurors occupying seats 17 and higher until there is a total of 16 ’cause-free’ jurors.

I’d like to think that this guide is a work in progress and not a finished product. One, single, standardized system of selection throughout the state would most surely make life easier. And after a couple hundred years of practice, we ought to be up to that task.

And if you want the story on the artwork I’ve used for this bit, you can check it out here (But please excuse the horribly self-promotional text at the link. That needs to be re-written.)

Links to this post:

New York Brings (Some) Clarity to Jury Selection Rules
https://newyorkpersonalinjuryattorneyblog.com/2009/01/new-york-brings-some-clarity-to-jury.html. New York’s jury selection rules have always appeared a bit Byzantine. They vary from county to county and at times from judge to judge. …

posted by Jury Experiences @ January 24, 2009 8:13 PM

jury selection in new york
the courts are trying to come up with clearer rules.
posted by Walter Olson @ January 16, 2009 12:41 AM

 

November 10th, 2008

The Blogger’s Wife Sits Jury Duty

Mrs. NYPILB with her knight in shining armor.

Mrs. NYPILB sat jury duty last week She joins us today with a guest blog on her experience, with my occasional comments. That’s her pictured at right with her knight in shining armor.
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Last week was civic duty week. On Tuesday, November 4th, along with a record number of Americans, I cast my vote for a new President. On Wednesday, along with a few hundred of my fellow county citizens, I showed up for jury duty in White Plains, NY.

Eric — the guy who normally writes this blog — made fun of me as a I walked out the door at 8:00 am to arrive at 8:30 am in White Plains, as the summons proposed. He assured me that I would be the first juror there. [As my brother-in-law Dan was when he sat.] I chose to ignore him being that I’m always early in whatever we do and, well, he’s always late. To my punctual dismay, I walked into a full room of prospective jurors listening attentively to a woman giving instructions about the jury selection process. I secretly couldn’t wait to go home and tell Eric, “I was right and YOU were wrong!”

An elderly judge came in to tell us more about the process and the cases. He was quite genial and cracked some jokes — most likely the same ones he uses 365 days a year. Then he told us of two interesting cases on the roster; one case was criminal in nature and could take up to three weeks and the other was a Med Mal case that could take four. You could feel the tension in the room as we all made silent prayers not to be picked for one of those. When the judge stated that anyone with vacation plans could be excused into the other room, I seriously contemplated lying. But, being the complete dork that I am, I became convinced that they would ask me for proof and then I’d be screwed into serving some Grand Jury case that would take months. So, I sat still, squirming in my seat.

My get-out-of-a-long-trial for free card came when the judge also excused anyone with children 12 and under.

Within 30-minutes, I was called into a separate room to undergo the voir dire process on what was described as a short civil case. I wasn’t picked with the first round of jurors to be questioned but was asked to stay in the room. I listened to the Plaintiff’s attorney methodically question each of the 12 potentials, at first with interest and then with cynicism, annoyance and finally complete and utter boredom.

[ET note — Keeping it interesting after the first few is always a challenge. When I sense the boredom come on, I’ll ask the next juror, “You’ve heard all the prior questions, what do you think I should know that is interesting?” When the jurors question themselves, the answers can be interesting.]

The case was simple. The Plaintiff was Verizon. The defendants were two contractors. One a GC and the other a sub-contractor who specialized in boring holes under the ground for excavation work. In a nutshell, while boring, the defendant(s) clipped a Verizon cable. Verizon said the contractors were negligent. The contractors claimed that Verizon was negligent due to the improper demarcation of where the wires in fact lied underground. It was the jurors’ duty to assign blame.

Out of the first group of potential jurors questioned, the lawyers nixed a handful, which meant that more of us had to undergo a round of mundane questioning, including me. The lawyer handling Verizon’s end of the argument was painful to listen to. I’m convinced it was his first case. He asked the same series of “yes” or “no” questions to each and every juror. When it came to my turn I had to bite my tongue not to say “Let me save you some time here. Yes, I have Verizon services. Yes, I’ve had problems with it. No I don’t think my past problems with Verizon will prejudice my judgment in this case. Yes, my husband is a Med Mal/PI attorney but I don’t think it’s relevant in this case. Yes, I have little kids but my Med Mal husband has agreed to be home to get the kids off the bus this week so I can serve. So, take me, I’m yours.”

[ET note: Yes and no questions in voir dire, are, of course, some of the worst. You learn virtually nothing about the potential juror. In such a situation, the question I would start with is, How do you feel about Verizon? And with yes or not questions, the lawyers can never conduct the Turkewitz Beer Test.]

Of course I didn’t do that. While questioning me, the Verizon man seemed to want to find an excuse for me to not sit on his jury. After saying to me “well, won’t your kids be upset if you don’t put them on the bus,” I looked him in the face and said, “they’ll live for 2 days. This is a good time for me to do my civic duty and I’d be happy to serve.”

I got picked. It was going to be a breeze. One to two days at the most.

Right before entering the courtroom, I found out I was an alternate. After taking the first seat in the front row, the Judge started reading us procedural directions. When I say “reading,” I mean reading. All I could think of was Snoopy and the “Wa, wa, wa, wa, wa, wa” one would hear when an adult talked to Linus, Charlie Brown or any of the other Peanuts characters. In his closing directives, the Judge did the same. What’s the point in reading us the directives if we can’t understand what the heck is being said? My guess is that it’s just to avoid any appeals based on improperly directing the jury.

I can’t remember a single other situation in my life where I have been forced to be “taught” something and not allowed to interrupt with any questions. This was the hardest part of sitting on a jury. Every 10 minutes, I wanted to be like Horshack in Welcome Back Kotter — “ooh, ooh, ooh” with my hand waving high in the air! Instead, I had to listen and decide who was liable without having all the information I needed. Hmm…maybe I shouldn’t have cancelled those LSATs after graduating from Michigan.

[ET note: Some judges have experimented with having jurors ask questions, via a written submission to the judge.]

The funniest part of the day had to do with an incident regarding the court reporter. As he was typing away, every word uttered in the courtroom was magically transcribed onto a computer screen. This screen happened to be facing the juror box. There was one 30-second period where there was a pause in the dialogue and we all saw the Reporter check his email on AOL! Granted, it was the fastest email check I’ve ever seen in my life. Was he looking to see if his horse won the race? If his stocks were down? If he was gonna get laid later?

In the end, the trial was over in just a few short hours. I found the whole thing to be fascinating and was completely and utterly bummed that I was told to exit the courtroom and leave the building because, as an alternate, I was not needed anymore. I was not invited to deliberate. I had so much to say and nobody to say it to. I left with my tail between my legs. But once outside my tail started to wag when I realized that I wouldn’t be called to do this civic duty again for six long years. Phew.

 

October 27th, 2008

Stevens Convicted (I Was Wrong)


Senator Ted Stevens of Alaska was just convicted of seven corruption charges. So when I suggested the other day about a deadlocked jury possibly leading to an acquittal, or at least a compromised verdict, I was wrong.

There was one juror that was having “violent outbursts” that I assumed was going to cause great problems. (And there was another juror that went home due to family problems.)

Will we get to find out what happened with respect to the two above jurors? Not right now. According to the judge:

The jurors have unanimously told me that no one has any desire to speak to any member of the media. They have asked to go home and they are en route home.

Of course, that often changes.

 

October 24th, 2008

The Deadlocked Jury (Ted Stevens Trial) – Updated


The news from inside the Sen. Ted Stevens jury room was not pretty: “Violent outbursts” from a juror. Essentially, if this juror has others in her corner on the merits, it almost guarantees a deadlocked jury. And a hung jury is good for a criminal defendant.

Here’s the note from the jury room:

“We, the jury, requests that juror number nine be removed from the jury. She is being rude, disrespectful and unreasonable. She has had violent outbursts with other jurors, and jurors are getting off course. She is not following the laws and rules as stipulated in the instructions.”

I’ve had juries out for days on end. But in civil cases in New York, we only need 5/6 for a verdict. I have my own theory on why juries fight and deadlock — and how I tried to avoid it when I sat in the jury box some years ago and how I try to avoid it when I stand in the well– and it can best be summed up in one word: Ego.

Nobody likes to admit they are wrong. Thus, when jurors stake out a strong position at the start of deliberations, a problem is created if there is a conflict. Someone will have to change their mind. Someone will have to appear “weak.” That’s bad. If you want someone to change their mind, you have to make it easy for them. The carrot works better than the stick.

How do you avoid the problem? When I sat jury duty on a criminal case, I grabbed the bull by the horns when we went in to deliberate. I suggested that we go around the table and, without saying if we thought the defendant was guilty or not, simply discuss a piece of evidence that was interesting. That was it. Thus, without having staked out any ground as to ultimate guilt or not, it would be far easier for people to be receptive to alternative arguments and evidence.

With that experience in my back pocket, I often take a minute during my own summations to discuss the importance of listening to others and being receptive to others. I will, on occasion, tell them bluntly why, discussing the problem of ego and changing one’s mind. (Defense lawyers, by contrast, might be telling jurors they should stick to their guns, hoping for hung juries.)

Whether such cautions were given at the start of the Ted Stevens deliberations, I don’t know. Presiding judge Emmet Sullivan has gave the jurors a pep talk, telling them they should “encourage civility and mutual respect” in their consideration of all the evidence. But it may be too late, as the threats of fisticuffs can easily kick in the ego factor that prevents people from changing their minds, and causes either a hung jury or one that is severely compromised.

Verdicts, sometimes, are more about ego and less about evidence than the litigants might have hoped.

Update: