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When the Jury Does Not Show Up!

Here we are… it’s Monday! Is this how you felt this morning?

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At the beginning of every jury trial, I always start by thanking each jury member for taking the time to be there. I sometimes wonder if they think that it is just my memorized introduction. They would not think that, if they saw Sunday’s edition of the Richmond Times-Dispatch.

The article (here) is titled, “Jury duty no-shows in Chesterfield are causing trial delays – now the no-shows may get fined, too”.

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But here’s what the reporter is saying.  There were 373 summoned Chesterfield residents who initially failed to appear for jury duty in 2017 and January, 2018. Ultimately, 103 showed up to explain to the judge why they failed to report for jury duty. So far, the court has entered dollar judgments against 24 people. Some of those judgments are as high as $200.

I have previously blogged about having a trial continued in Chesapeake, Virginia, because they did not have enough jurors show up for court.  In Chesterfield, the no-shows are a cause of growing concern in Chesterfield. Court personnel reports having to sometimes scramble to find enough people to seat juries. One November jury trial was canceled because of no-shows.

In the article, Chesterfield Sheriff Karl Leonard was quoted as noting that, “It’s a huge problem. It really delays justice.” He also went on to discuss that some Chesterfield’s circuit judges have indicated they may want him to send deputies to pick up prospective jurors from their homes or workplaces, if enough don’t show up for jury duty.

The Henrico Chief Judge has indicated they they are fortunately not having the same issue. “We just have not had a problem,” said Chief Henrico Circuit Judge James Yoffy, “We do have a good system out here.” Petersburg Circuit Court recorded the third-highest number of juror absences in the region — 312.

Just a quick note on the process from our end. We set a court date that is sometimes almost a year away. Then, we make arrangements with witnesses and send out subpoenas. As to doctors who are going to testify, we subpoena them and then sometimes are also required to pay them a NON-REFUNDABLE trial testimony retainer payment.

If it is a very busy doctor in a specialized area of medicine, that retainer could be $5000-$10,000. Getting on their schedules and then paying large retainers to doctors is expected. Then… you truly hope that all scheduling will work and that everyone will show up, so the trial can go forward. Delay is normally good for the defense because it means that the defendant can put off responsibility for the harms, for a little longer.

Unfortunately, if a trial is continued, it’s not just a matter of showing up the next day. Those days are already pre-scheduled.  It’s once again trying to get back on the Court’s docket. It usually means going downstairs to the Clerk’s office and hoping to get back on a little sooner than it originally took to schedule.

But… those non-refundable retainers to the doctors are usually gone. For the next court date, it takes more non-refundable retainers.

That’s why my beginning remarks to jurors are truly from a place of thankfulness! Even though this is how some might be thinking:

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And for pic o’ day…

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Jury Rights and Comforts

An article on jury service grabbed my attention when it mentioned a judge handing out chocolate chip cookies. Plus, I refuse to acknowledge why Twitter is so fascinated with Baby Hitler. So,on to the cookie story.

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But first, some background … no, not on the cookies!

It’s exciting to think that a prospective juror would show up with excitement to hear a case. The reality is that they feel inconvenienced; angry at the parking; and hopeful that they get to go home early.

In Greenville, South Carolina, a jury panel shows up to the Courthouse and is directed to the basement. There, they are asked to watch a film on jury duty that was recorded several years ago. Usually, there are at least 100 people gathered on folding chairs in that room.

Soon, lawyers with cases that might be called during that term are brought downstairs to watch all the jurors stand, and be called by name.

The first time that I participated in that process, I realized that unless I had a photographic memory, I wasn’t getting much by watching over 100 people stand and sit. I suspect that it feels very impersonal for the prospective jurors as they popped up and down while their name was called.

Arizona is the only state that I know, who formally has enacted a Juror Bill of Rights. It begins with the statement that JUDGES, ATTORNEYS AND COURT STARFF SHALL MAKE EVERY EFFORT TO ASSURE THAT ARIZONA JUROR ARE… and then it lists twelve items. The first involves courtesy and respect and the last involves being paid.  Yes, that statement is printed in all caps. I didn’t want you to think that I was hollering.

A District Judge in Sioux City, Iowa, is also taking treatment of jurors very seriously. He says that he uses the acronym WWJW as an approach to jury trials, and he means by that What Would Jurors Want?

In an upcoming article that he has written for the Arizona State Law Review, he is proposing his own Bill of Rights for Jurors. Here is a condensed version of his list:

1) The right not to have their time wasted with “unnecessary, cumulative and excessive evidence.

2) The right to be told during jury selection in civil trials exactly how long a trial will last, minus the time for deliberations. Bennett and his law clerk use an online chess clock to measure time limits during the trial.

3) The right to have plain-English jury instructions before opening statements. Bennett’s instructions “come complete with a meaningful table of content, bullet points and white space.”

4) The right to have their judge “thoughtfully consider innovations that enhance their experience and the fairness of the trial.”

5) The right to “juror creature comforts.” This includes comfortable seating and nutritious snacks. Bennett bakes cookies for the jurors in trials lasting four days or more.

Not sure that the cookies count as nutritious… but I know some folks who would sit on the jury for a day. Of course, I know a few who can’t stand chocolate. For them… maybe a Flatbread pizza! Maybe there is a good movement afoot for making jurors happy!

And  now to our pic o’ day from my Mom:

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A Subway Evidence Lesson

     Subway used to air a commercial that had a football referee standing at midfield. Over the intercom, he was telling the crowd, “I totally blew the call. In fact, it wasn’t even close. But don’t worry. I’ll penalize the other team- for no good reason- in the second half. To even things up.”

     I have to admit that, sometimes, it feels like a Judge is doing that in pretrial conferences.   Maybe it’s just compromise. I do know that  my competitive nature gets a hold of me and I don’t even want to give in on minor issues. 

     Once the case is submitted to a jury, the Judge has to sit and wait for the verdict;  just like me. 

     When the jury first gets back there, they are supposed to immediately elect a foreman. Then, their jury deliberations are supposed to include an opportunity for everyone to express their opinions.

     In South Carolina, the law specifically spells out that they are not supposed to add up all their possible verdict dollar amounts, and divide by the amount of sitting jurors. Justice is not averaging a verdict amount.  Instead,  jurors can compromise,  to come up with the amount that will be written on the verdict form, and then read to the courtroom.

     Juries are supposed to base their verdict on the law and the evidence. I’m glad that they take the time and don’t just try to “even things up”.   Plus, I’m glad that we have football back again!

Technology in the Courtroom

I once heard a jury consultant espouse the concerns of what not to take and wear to the courtroom. “Don’t wear a rolex watch. Don’t drive a big fancy car”. By the time he was finished speaking, he almost had me believing that I should wear some mis-matched jacket and pair of pants. He believed that you didn’t want to look too successful to the jury.
 
 Another jury consultant took a complete opposite approach, “Look successful, the jury won’t award your client money, if they think that you (the lawyer) need it too badly.” Another suggested that you should never be the center of attention in any courtroom. It reminded me of the Senior referee, when I was a basketball ref, during my law school years. “If you leave the game and they don’t remember who called the game (ref), then you probably did a good job officiating.”
 
One other consultant told me that it didn’t matter that much what you said. He focused on the visual items. “I can win a case with just 3 photographs”. Of course, the amount of money that he wanted to be paid to determine and arrange those photos in your opening, was something short of amazing. Plus, there are some colors that you can’t use because they are not persuasive.
 Sometimes consultants make you feel like a new diet. “Eat more meat”. Another might have you focused on garlic soup and cucumbers, as the panacea of weigh loss.

This blog came to mind, I just saw a cell phone ad, with security asking the guy at the airport, “Is it a phone or a computer?” With technology advancements, it’s getting harder to differentiate.

I was in a small court house in the back side of nowhere, in the State of South Carolina. The sign said “No phones”. Cell phones with the capability of keeping your calendar schedule, had just come out. I had never been real good about keeping a Daytimer calendar; so I was determined to give my new phone a shot, with organizing my schedule.

 The Deputies at the door, would not let me in with my phone. I tried to persuasively claim it as my calendar and that I wouldn’t be able to set trial without it. I felt like the guy in the commercial. I could feel myself getting angry and I knew that would get me no where fast. “I’ll bet you don’t even have a microwave to warm up your meat and 3”. No, I didn’t really say that, but……

Right now, I am typing this blog on my IPad, because of a few computer issues. I am getting ready for trial and working on what exhibits I will “make real big”. I have noticed that jurors seem to almost pay more attention to the TV, when I play video testimony, then when a live witness takes the stand. That seems especially true, when there are exhibits.

To avoid making a long blog longer, I’ll get to the point. (I know you just breathed a sigh of relief) You don’t have to have evidence that is similar to the movie “Avatar”. I am thankful, though, that there are visuals that can easily show the scene and describe the injuries.

A very wise consultant did tell me something about evidence that has always stuck with me. “If you tell, they may remember; if you show; more will grasp your message; if you involve, they will understand”

Following a jury trial a while back, a juror came up to me. She shook my hand and it surprised me. Most of the time, I don’t get to speak to jurors right after the trial. “Thank you”, she said. “At least you made it interesting”.

What she was expressing is the value of technology in getting to the truth. Oh, and it’s also helpful that I can get my cellphone/calendar/Ipad/computer into the Courtroom.

A Juror Named Charlie Sheen

     In the state of Virginia, you are provided with a panel of names, for possible jurors. The information is not much more than a name, address and occupation. You really don’t even know what their spouse’s employment might be.

     At some point, the Judge usually looks at me and says, “Mr Bieber, do you have any questions?”. In that short time, I try to learn about each prospective juror. I know that I don’t have a lot of time. Justice demands a fair and impartial jury. Let’s be honest, though, I want a jury that meets that criteria; but also will especially “lean fair”  toward my client.

     I have had some prospective jurors who look at me with blank stares. Then, they become part of a jury with a tremendous verdict. I’ve had other prospective jurors who have smiled real big, like Andy Griffith. Then, they end up being the jury foreman; proudly reading a verdict that was less than the settlement offer. Fortunately, I’ve managed to keep most of those grins off my jury panels.

     With all the 24/7 coverage of Charlie Sheen, it seems as though he spews a new quote that tops the last one. His recent actions seem crazy. We are an obsessed celebrity nation, that can’t get enough of the stars; Especially when it looks like a train wreck is coming, like maybe, we don’t want to miss whether Brittany Spears will shave her head again.

     In that context, I wonder if I have had a Charlie Sheen on my potential jury. I was thinking of questions that I usually ask, and what I would think, if he had responded with some of his recent quotes. Maybe it would have sounded something like this:

     Question: “Is there anything about this case that you think, would make it difficult to listen fairly to the evidence?”

          Sheen: “If you borrowed my brain for five seconds, you’d be like, “Dude! Can’t handle it, unplug this bast**d. It fires in a way that’s maybe not from, uh…. this terrestrial realm.”

      Question: “This case involves a loss of sleep from a crash. Is there anyone who believes that they could not fairly listen to such evidence?”

           Sheen: “The nights I don’t sleep, it’s because there’s a higher calling telling me to stand guard.”

     Question: “In any case like this, the law requires that you consider life expectancy, when you consider damages. Is there anyone who believes that they could not do that, even if the law requires it?”

          Sheen: “Dying is for fools, amateurs. I’m different. I have a different constitution. I have a different brain. I have a different heart. I got tiger blood, man.”

     Question: “My client’s daily life has been impacted by the pain. Do you or someone in your immediate family have issues with  daily life?”

          Sheen: “Every day it’s perfect. It’s awesome. Every day is just filled with just wins. All we do is put wins in the record books. We win so radically in our underwear before our first cup of coffee, it’s scary.”

     By now, I’m guessing that you have had enough of Sheen. I recite some of his quotes because there are people in the jury panel that probably would answer with some interesting quotes, if allowed to do so. Does “unusual or attention grabbing”  make it impossible to consider evidence in an impartial manner. 

     In Virginia, at least we get to ask some questions. In South Carolina and in most Federal Court civil actions, the Judge does all the questioning and usually, it doesn’t go beyond, “Do you know the lawyers?” “Is there anyone here that cannot be fair”.

     They don’t really even consider lawyer submitted questions, to be asked by the South Carolina state court. So, that’s why I wonder if a Sheen would have been missed.  So, when Charlie Sheen said that he cured himself when, “I blinked and I cured my brain”,  perhaps that same standard was being applied to my client’s injuries. 

      I make it sound like a Sheen juror is a defense juror. I’m guessing that the defense would strike him if he answered that he was, “on a drug and it’s called Charlie Sheen”. What do you think?  I think that it’s a good argument to allow lawyers to question prospective jurors.

How You Look At It

My cousin sent this picture that was taken from his window. That’s no pet looking in. I suspect that there’s a bigger one nearby. It reminds me of the old saying “it’s how you look at things”. Here, there’s no safe way to look at a bear through a window. That’s false security.
In my previous blog, I mentioned that I was going to a meeting this past weekend. Well, one of the speakers focused on the studies of statistics and how they relate to injury and diagnosed medical problems.
One of the statistics that really had impact on me, related to lung cancer. He described that a person that smokes has a 22.1% chance of getting lung cancer. Because there are some people that get lung cancer without smoking, I was curious as to the statistic of lung cancer, without smoking… about 1% chance.
That’s one of those statistics that is a reminder that there is really no good way of looking at it. A little greater than 1 to 5 odds of getting cancer doesn’t seem to have much impact on many, when they choose to smoke.
As I walked through the airport on Sunday, I walked by the infamous “smoking room” where everyone can go to smoke. Looking in the glass, in that smokey haze, I could count about 15 people sitting in there. Those statistics tell us that 3 people in there, will end up with lung cancer.
In jury trials, there are several psychological juror bias factors that impact verdicts. Psychologists tell us that one is called the attrition bias. That means that “it won’t happen to me”. So, when that type of juror hears evidence, they tend to put some fault on the plaintiff, because they believe such injuries could not have happened to them; They would have done something differently; even in a rear-end crash.
Unfortunately, it is that same attitude regarding smoking. Tobacco companies continue to turn a profit, despite the alarming statistics. Cigarrettes continue to be sold, no matter what warning is put on the package. Like that juror attitude, “it won’t happen to me” is a terrible stumbling block in the area of good health.
When Tobacco companies pushed for FDA regulation of their product as a drug, they did so with the hope that it would give them some liability cover. They already knew that warnings and statistics had not hurt sales very much. So, why not pretend to be a regulated drug. Now, how does that really make sense?

Is That a Hat or a Squirrel?

     Prospective jurors arrive at the courthouse and report to the jury duty room. They are unsure what to expect. Once they have gotten over the concept that they have jury duty, the next question is whether “they will get picked”.  Will this be an interesting case?

     One jury consultant reminded me of the significance of 20 feet in the Courtroom. If one juror tells another that they have a headache, it’s no surprise if the other juror reaches into their purse and pulls out aspirin or Advil. Yet, if a plaintiff, sitting at counsel table, reports that they have headaches from the crash, it’s not unusual for the jury to suspect that the plaintiff is faking and only claiming headaches for money. How does that 20 feet so effect jurors to make them claim to be from Missouri, the “show me state”.

     With prospective jurors being bombarded with media messages of the need for tort reform; and the reminder of the evils of “The McDonalds’ case, they suspect that many plaintiffs’ lawyers are attempting to  “pull the wool over their eyes”. I finally got to blog it. I have always wanted to somehow reference “pulling the wool over their eyes” . Do you know where that saying came from? It is usually attributed to lawyers that wore wigs in the Courtroom.

      Even today, lawyers still wear wigs in England courtrooms. In fact, that is one of the initial major expenses that new lawyers must bear. It makes the new pack of legal pads seem a bit boring.  Here in the United States, though, lawyers no longer wear wigs and that is usually attributed to Thomas Jefferson who remarked,”For Heaven’s sake, discard the monstrous wig which makes the English judges look like rats peeping through bunches of oakum.”

     One renown lawyer in Chicago, who has practiced over 50 years, has declared that he would never hire a lawyer who wears a wig. He believes that a jury may not know why they distrust that lawyer, but wearing a wig is really hiding something, which means that you are not entirely being honest with the jury. If they already have difficulty believing in the headache, maybe he has a point. For me, I’d like to get a crew-cut for the summer, but then it would look like the crew had bailed out.

     In every trial, there is a fight for the minds and hearts of the jury. In the trial story, the jury will either believe the plaintiff or defendant. It was reported that before the first Vioxx trial in Texas, Merck bought a significant amount of TV ads that touted all the good that Merck had done for medicine. I’ll let you ruminate on why they did that media buy. In the end, if you recall, either the jury didn’t see the ads; they had little effect on them; or the evidence simply was too overwhelming, so as to result in a verdict of $253.4 million, in a venue that was and still is considered very conservative. It shows that many jurors are ultimately able to overcome pretrial bias and prejudice and that they take their jury oath seriously in considering the evidence.

     Let’s summarize my rambling blog thoughts. A plaintiff’s lawyer should only bring real injuries and real cases to a jury, or that jury will not be persuaded to accept them.  That defeats the rhetoric of the politician politician, who seeks tort reform because too many lawyers are somehow profiting from frivolous lawsuits;  Next, a headache is still a headache, even from 20 feet away; Finally, at least I don’t have to worry about wearing an itchy wig, that might not match with my suit and also cause courtroom sneezing.

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