Thomas Jefferson viewed trials by jury as an indispensable “fence” against government encroachments on civil and economic liberties. Service on a jury, according to Jefferson, is the highest service a citizen can render to his or her country. (See David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville, VA: University Press of Virginia, 1994).
From Tuesday, August 5, through Friday, August 8, I had the privilege of practicing what Jefferson preached. I served on a jury for a civil trial involving allegations of malpractice against an oral surgeon. For three-and-a-half days my eleven colleagues and I listened to testimony; for five emotion-filled hours we deliberated our verdict. It was an experience in direct democracy I will never forget.
Not Exactly Twelve Angry Men
We were nine men and three women. Two were over the age of 70; two were college students in their early 20s; the rest of us were middle-aged. Two were retired, three had white-collar jobs, four were blue-collar workers, two hadn’t yet started to work, and one was on welfare. Six were black and six were white.
Our casual conversations during breaks foreshadowed disagreements that would surface later. Earnest, a 50-something black truck driver, disliked the self-confident white defendant from the outset and soon was commenting negatively on all white professionals. He found an ally in Stan, the 40-something white welfare recipient, who said he didn’t trust doctors, lawyers, or the paid experts they brought in to testify on their behalf.
Juan and James, two young, black, blue-collar workers, seemed to think the case was largely a contest between legal teams. They liked the loud and aggressive plaintiff’s attorney, ogled at the tall female member of the defense team, and poked fun at her young Jewish partner. Pauline, a black professional in her 50s, sympathized with the plaintiff, a woman also in her 50s who seemed cursed with bad luck and poor judgment.
We got along famously during our breaks and lunch period. Out of the banter and laughter grew real friendships across the usual barriers of age, race, and occupation.
The Party Ends
Just before noon on the fourth day, the lawyers made their closing arguments. The judge read to us page after page of instructions regarding the burden of proof, shared negligence, the actual counts of the lawsuit, and so on. We filed back into our room. The plaintiff’s medical file, jury instructions, and verdict forms were unceremoniously dumped on the table, and we ordered sandwiches for lunch.
I asked Bob and then Mr. Gibson, the two senior members of the jury, to serve as foreman. Both refused and asked me to take the role instead. It was unanimous, though I thought Juan looked a little disappointed.
The party-like atmosphere of our previous lunches ended abruptly when Stan said “let’s vote and get it over with. The next bus leaves in 20 minutes, so I can just make it.” At least five other jurors agreed that our deliberations should take no more than 10 or 15 minutes. Juan confidently declared the plaintiff’s attorney “the clear winner,” and Pauline, Stan, and Earnest all said, in effect, “let’s get Marcy (the plaintiff) her money and get out of here.”
I was astounded. There are eight separate findings spanning two counts, I said. We should weigh and discuss each one before reaching a verdict. Only then can we discuss whether to give the plaintiff an award. I remember Pauline gasped out loud.
The Debate Heats Up
It quickly became apparent that several jurors hadn’t been able to follow the chronology of the case and didn’t recognize the specific episodes being disputed. At least seven jurors could not understand the counts as they were worded on the verdict forms, even after they were read several times. And no one really understood the rules of evidence or what burden of proof meant.
We discussed each of the three sections of the first count, alleging that the doctor had failed to get informed consent from his patient. Had Marcy proven that the doctor failed to discuss his treatment plan with her prior to placing the first dental implant? Would she have acted differently if he had? The pro-plaintiff group weakened as it admitted that Marcy’s memory of what happened, and when, was unreliable. All three votes favored the defendant.
The second count, alleging medical malpractice in the placement and subsequent removal of two implants, had five parts. Votes on the first four again favored the doctor. Several pro-plaintiff jurors became fearful that “Marcy wouldn’t get anything” and were visibly angry or sullen. Three or four aggressively and repeatedly asserted that we should “just get it over with” so they could leave.
Comments were made to the effect that white jurors were showing prejudice in siding with the white doctor (even though the plaintiff was also white). Pauline was accused of allowing sympathy for the plaintiff to cloud her judgment. Tempers flared, and the volume of the discussion rose. I had to shout to be heard over the din.
The vote on the final part of the second count was ten to two in favor of the plaintiff. A sense of relief flooded the room. Fists unclenched, shoulders relaxed, and smiles replaced frowns for the first time since deliberations began some four hours earlier. But the cease fire was short-lived.
Determining the Plaintiff’s Award
Several jurors thought we should award the plaintiff the entire $180,000 her attorney had requested. The ensuing debate touched on insurance, attorneys fees, the purpose of tort law, class envy, and the subjective nature of pain and suffering. We argued and voted, argued some more, and eventually compromised at $35,000. Everyone signed the verdict forms, and we rang the buzzer on the wall indicating we had concluded our deliberations.
There was some confusion over the amount by which the award needed to be reduced due to the plaintiff’s contributory negligence, so the judge polled the jury. I held my breath and hoped the fragile compromise we had reached would survive. Most of the jurors, after all, were still profoundly confused by the wording of the verdict they had signed. Everyone did affirm the verdict, though, and we were dismissed.
Advice from a Juror
Our judge assumed that jurors understood such basic concepts as negligence and the burden of proof. We didn’t. He spoke much too fast when giving instructions, did not ask if we had any questions, and certainly did not use plain language. The verdict was written in legalise that no layman could possibly understand.
Judges should tell jurors to choose as foreman someone who has not yet made up his or her mind and is willing to give everyone an opportunity to speak. Tell jurors that during deliberations they should fully discuss each part of each count, even if this takes several hours or more than one day. Explain what will happen if the jury fails to reach a verdict by the end of the day. Explain that a single juror has the right to refuse to sign a verdict, even if it means a deadlock and no verdict.
Lawyers also need to stop talking over the heads of jurors. Slow down, avoid jargon, and avoid boring repetition. Use simple charts and diagrams with BIG TYPE that jurors can use to follow the chronology of a case and commit to memory such basic data as the names of the litigants and their experts, and some of the products or services that figure prominently in the case.
Who Will Educate Future Jurors?
Lawyers as a group should invest in public education–newspapers ads, television commercials, brochures, etc.–explaining what citizens should expect when they are asked to serve on a jury. Basic information about how long we might have to deliberate, how to select a foreman, and the plaintiff’s burden of proof all would have helped my jury immensely.
Educating citizens for jury service is an important task that is being overlooked by think tanks, business groups, and lawyers. If the people are to perform their role as “safe depositories” of limited government, as Jefferson observed, then a modest investment to prepare them for such a task, it seems to me, is in order.
