Dear Colleagues,
Back in 1996, I was a trial lawyer, and I began writing for this publication. I went on the bench in 1999, and for the past 20 years I have brought you stories from the bench. By the time this column posts, I will have come full circle and hope to join you on the other side of the bench as a trial lawyer once again. When not in court, I will be working as a codirector for the Civil Jury Project at NYU School of Law.
“[The project] studies why jury trials are disappearing, asks whether we should care, and suggests things that could be done to reverse the trend,” says Project Executive Director Stephen D. Susman, a longtime ABA Section of Litigation member and legendary trial attorney (emphasis added).
In my last column, I wrote that jury verdicts drive all litigation decisions. With no jury verdicts we lose the benchmarks that each trial attorney must look to in determining exposure, settlement, or alternative dispute resolution. Without clients willing to go to trial and attorneys willing to take cases to trial, we would have absolutely no benchmarks.
The most colorful dissent I have ever read was by the legendary dissenter Justice Michael Musmanno, in a Tropic of Cancer obscenity case. For a chuckle, take five minutes and read it. A close second, with much less railing and much more thought, is the case of Roberts v. Stevens Clinic Hospital. The opinion swings from citing Averroes’ commentaries on Aristotle to the spire on the Great Cathedral in Salisbury, England, back to Hamlet. It is also the perfect case to frame up why we should care about the demise of civil jury trials.
In Roberts, a couple had two children from the wife’s previous relationship. The couple wanted to have a child of their own, and a baby boy was born. After that, the wife had a hysterectomy. The majority described the little boy as “the darling of the whole family.”
The parents took the little boy to the defendant doctor after an episode of rectal bleeding. The doctor suggested a sigmoidoscopy. He told the parents it was a simple procedure that might detect a polyp, which could be snipped off and may not even require a stitch.
Without advising the parents, the doctor also performed a biopsy and, in doing so, perforated the boy’s colon. The boy died of peritonitis. The court described the negligence of the defendants as “palpable” and “clear-cut.”
After a 2-week trial, the jury returned a verdict of $10 million. An appeal followed, and the majority reduced the award to $3 million. In cutting the award, the majority delved into issues of jury deliberation, trial strategy, settlement negotiations, and the economics of litigation. The scope of topics addressed is simply breathtaking.
