He was old, but he was possibly the most impressive expert witness I had ever seen. He took everyone in the courtroom through an understandable tutorial on reading magnetic resonance imaging (MRI) images. He made this complicated topic fascinating. This was probably due to the fact that he helped develop the MRI machine!
He was crossed on how much he charges to testify in court. It was substantial, but even then, I had the feeling that if he helped invent the MRI machine, any amount might not be beyond the pale. When crossed on the number of times he had testified, the expert conceded it had been many times, but he added with a slight smile, “I’m slowing down.” All of the jurors smiled; several stifled a laugh.
Unless something unexpected falls on my plate, that was my last civil jury trial as a trial court judge. The case had the added excitement of the codefendant hospital settling with the plaintiff a couple of weeks before trial. The earth then shifted 180 degrees. The defendant doctor was now free to try and point the finger at the hospital, even though they were walking arm in arm throughout the case. The plaintiff, who had been pointing fingers at both, now had to pivot to aim only at the doctor and downplay the role of the hospital.
Contrary to the lament heard often from my colleagues in federal court about the disappearing civil jury trial, I am glad to report that the situation seems not yet as dire in my jurisdiction. Nevertheless, if the civil jury trial decline continues, I believe we will lose the guideposts on which all decisions in litigation are made. We will also lose the crucial involvement of our fellow citizens in these important cases.
In my experience, the decline in civil juries is not due to any reluctance on the part of the jurors to serve. Once the initial trepidation about serving is overcome, the jurors embrace the process. My last case was the perfect example. This high-stakes, multimillion-dollar case settled after two days of jury selection and three days of trial. The jurors had been told that the case might last two weeks.
In my experience, the decline in civil juries is not due to any reluctance on the part of the jurors to serve.
The case settled during lunch on the third day. As we brought the jurors into the courtroom, they were all looking around. The large screen was down, the projector put away, and the electric cords snaking across the floor to computers and other equipment were gone. I began, “Well, I assume you all have figured out by now, since the large screen is down, that the case has settled.” I tried to read their reaction. Many of them sighed or visibly relaxed when I told them this.
I continued, “And I know your first reaction might be, ‘Wow, what a waste of time—five days of our lives spent and we don’t even get to decide this case or hear from the other side.’” I assured them that their time had not been wasted. I said the attorneys and the parties were taking very careful note of how they reacted to the testimony and the evidence. Since I allow jurors to ask questions, the attorneys could get a peek into what some jurors were thinking.
I ended with, “So, we thank you for your service. Your term as a juror is done. However, if any of you are willing to stay with us, we would love to debrief you on what you thought of the case up to this point.” I expected to get only two or three jurors to volunteer.
Twelve of the 14 stayed—for two and a half hours! Every half-hour or so I would tell them that their jury service was done, and anybody was welcome to leave. No one left. The only reason we stopped after two and a half hours was that the courthouse was closing.
We went around the table. Each juror had questions. They had follow-up questions to their fellow jurors’ questions. They were fascinated by the process. They talked about what they liked and did not like about the advocacy. They talked about verdict ranges. One asked if they returned a verdict for the millions requested by the plaintiff mother (the majority of which would be used for the care of her brain-damaged child), what would happen to that money if the child unfortunately died the day after the verdict.
When I told them that the courthouse was closing, the jurors stood up and essentially formed what was akin to a receiving line at a wedding. They wanted to shake everyone’s hand. They realized they had just been involved in something truly unique. The day before they got to the courthouse, they were washing dishes, mowing lawns, and paying bills. They then had to join nearly 100 of their fellow citizens, answer questions about themselves, and listen to complicated medical evidence on a case that was life-changing for both sides.
They had bonded as a group in five days. I always tell those who serve that my hope is that they feel a real sense of pride as they leave the courthouse. I know those 12 that stayed felt that pride. I am confident they went home and told their friends and neighbors about this unique and rare experience.
As I tell every jury, there are some issues that are too important for just one person to decide. I believe there is great value in having 12 fellow citizens tell the plaintiff or the defendant who was right and who was wrong. The amount of the verdict communicates much more than the dollars on the last line. I have had verdicts that were under what defendant’s counsel argued and over what plaintiff’s counsel requested.
Their verdict becomes even more telling when the losing side asks that the jurors be polled. There are few things more dramatic than the clerk asking 12 times, “Mr. or Ms. [name], was this then, and is this now, your verdict?” Every “yes” is like another nail pounding the verdict to the wall in the courtroom.
Since there are not as many civil jury trials, even in our courthouse, the result of any case tried to verdict ripples through the courthouse and the coffee shops where attorneys hang out. Jury verdicts set the benchmarks for settling a case or trying a case. In my opinion, judges’ decisions rarely ripple through the courthouse in the same manner as a jury verdict.
So, because I am stepping down in August, I know I will miss juries returning verdicts. I hope to still be involved with juries in some manner from the other side of the bench. I recently attended a fascinating two-day conference for the Civil Jury Project at NYU School of Law. The project is analyzing the decline in jury trials, the possible consequences of that to the legal system and society, and what we can do to improve the system. The project is building upon many of the principles and standards outlined in the American Bar Association’s American Jury Project. More on that in my next column.
Hon. Mark A. Drummond (ret.) is an associate editor for Litigation News.
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