Justice Isn’t Always Blind

For once, I am a spectator in the courtroom.  My “partner[1]” is in chambers with the Judge and three defense lawyers having a customary discussion about the case which has just been assigned to the Judge for a trial in which the jury has already been selected and opening statements are about to be given. 

I am seated in the front row of the spectator section when the attorneys and Judge enter the courtroom in noisy haste.  The Judge ascends the bench and orders the court officer to bring in the Jury.  Once they are seated he directs my partner to proceed with his opening statement, omitting the preliminary jury instructions which are customary.

After he is finished, the defense attorneys each give opening statements in turn.

Only then is a break taken, and I learn from my partner that the Judge has taken great offense at something he said while they were in chambers.

The first witness was a defendant physician.  Defense counsel objects to almost every question asked and the Judge sustains each and every one without permitting any arguments.  The attorneys are seated at counsel tables in the well of the courtroom, the plaintiff’s attorney at one table alone, nearer the jury, and all three defense lawyers at another table adjacent to plaintiff and further away from the jury almost on the opposite side of the courtroom.

The witness stand is closer to the jury on the Judge’s left side.

Each time the doctor’s attorney makes an objection, he rises without speaking.  When the question has been completely articulated, the witness awaits the Judge’s ruling before speaking, which ultimately proves to be unnecessary in any event.  Finally, after a brief and urgent whispered conversation with me, my partner begins to use the defendant’s deposition to question him, a tactic that met with better success than the simple questioning which had preceded it.

The tenor of the trial has been established, although I cannot imagine what has been said to cause such offense.

Now, our client is on the stand.  He is blind in his right eye, a fact which is not in dispute – the eye had been surgically removed.

As my partner is questioning him, the defense attorney rises wordlessly to make an objection.  The plaintiff answers the question.  Defense counsel begins shouting; “Objection!  Objection!  He is answering even though I objected to the question.”

The plaintiff turns his head to his right and says “I’m sorry Mr. [defense attorney], I didn’t see you.  You were standing on my blind side.”

A tremendous storm of objections ensues, leading the Judge to excuse the jury from the courtroom.  Arguments are made back and forth at great length.

The resolution ordered by the Judge over the objection of the Mr. [plaintiff’s attorney] is that each member of the jury will ascend the witness stand in turn and cover their right eye.  Mr. [defense attorney] will rise as if making an objection, and in this manner, each of the jurors will be able to assess whether the plaintiff had been truthful in asserting that he had not seen the defense attorney.

And so, in turn, each juror sat in the witness box covering their right eye while Mr. [defense attorney] stood.  Each juror, with the eye covered, turned their head to see Mr. [defense attorney].

Do you really need me to tell you what the jury verdict was?

My partner was furious!  He was determined to appeal the verdict in the name of PRINCIPLE.  The decision to appeal was one I did not agree with for many reasons, although I did believe we would be granted a new trial.

When a party appeals a jury verdict, the entire transcript of the trial made by the court reporter (stenographer) is assembled for the benefit of the reviewing court and the parties write legal briefs summarizing the facts and discussing the legal case law that should be applied to those facts to bring about a desired resolution of the issues raised by the appeal.

In reading the record I was able to see what had transpired in chambers before they all appeared in the courtroom.  Mr. [defense attorney] made a motion in limine which means to limit the proof in regard to some issue.  Mr. [plaintiff attorney] objected.  The Judge began to explain that the rule against hearsay  is based upon the constitutional right to confront one’s accuser.

Mr. [plaintiff attorney] began to lecture the Judge that the hearsay rule predated the constitution by hundreds of years and came to this country in the Magna Carta.  Reading that transcript, one can almost see smoke coming out of the Judge’s ears as he instructed Mr. [plaintiff attorney] to “get out of my chambers!”

The attorney appeared not to realize that he had caused offense, and continued trying to discuss the issue with the Judge.  The Judge then began calling for the “Marshalls”.  There are no Marshalls in state court, they are called court officers.  He apparently meant to have him physically removed if he would not go voluntarily.

I learned after our “partnership” ended (within months after that trial) that a new trial had been granted by the appellate court.  A new jury had reached the same result, at a probable cost of at least an additional $30,000.00 to plaintiff.

It gave new meaning to the term Pyrrhic victory and gave me a new perspective on what it means to defend “principle.”

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[1] From September 1994 until February 1996 I was a nominal partner in a law firm (the partnership agreement was never signed by my older and more experienced “partner” who was also the senior partner in a defense firm).

Worse Than Losing

When you lose your first case as a trial lawyer, someone will tell you “The only people that don’t lose cases don’t try cases.”  That is especially true for plaintiff’s attorneys and even truer for plaintiff’s attorneys who try medical malpractice cases.

Several years ago, a graphic chart was published by the New York Jury Verdict Reporter which indicated that medical malpractice plaintiffs in Nassau and Suffolk counties were losing more than 70% of their jury trials.

There are two schools of thought among trial lawyers about talking to jurors after a trial.  Some lawyers will actually go running out of the courtroom and wait for the jurors to be “processed” so that they can find them before they leave the courthouse and question them.  “What did you think of this witness?”, or “Was there anything we could have done to make things clearer?” or even “What was the most important thing that caused you to decide the case the way you did?”  I have even heard some lawyers speak to jurors after an adverse decision and continue trying to convince them that their decision was incorrect.

Other lawyers prefer not to seek out jurors to discuss the case.  The jurors have already expressed their opinion of what took place in the courtroom.  If this jury doesn’t like the way you did something, it doesn’t mean the next jury will feel the same way. 

Sometimes, you don’t have a choice.  Occasionally, jurors will wait for the lawyers because they want to discuss the trial.  Many times there will be a chance meeting, and no one wants to be rude.

Today, I took a verdict on a case where my client was claiming that her Obstetrician had been negligent, causing brain injury to her daughter at birth.  The jury found that the doctor did depart from accepted standards of medical care, but they voted 5 to 1 that the negligence was not causally related to the injuries.

The trial had taken several weeks.  The jury deliberations had taken several days, and there were signs that the jury was divided.

After the verdict, I congratulated my adversary.  I packed up my trial bags and left the courtroom.  I saw the defense lawyer again on the steps of the Supreme Court building on Sutphin Boulevard in Jamaica Queens.

                                      

As we were talking, one of the jurors came out of the building.  She came over to speak to us.  She told us that the jury had been divided 3 to 3.  She asked us “What would have happened if we did not reach a verdict?” 

“We would have had to try the case over again” the defense lawyer said.

“That’s what we thought”, she said.  “We couldn’t do that to you guys.”

That was a piece of information I did not need to hear.  Three jurors who believed we had proven our case and believed that a brain injured child was entitled to be compensated decided to deny that compensation to the child rather than cause the lawyers to retry the case.  Mind boggling.

Losing a case is bad enough.  Losing it for the wrong reason is worse. 

I am always curious about the jury’s thinking.  Why did I win or lose?  What did they think of me and the other lawyers, my clients, the expert witnesses?  Is there something I can learn from them? 

But that is driven by ego.  And if you want to try cases, your ego is going to take a beating.  I will just have to be satisfied with my own answers to any questions; questions which will be forgotten as soon as I start my next case.

"Civil" Law

September 1988

I’m selecting a jury on a case against two chiropractors.  They are insured by a specialized professional liability carrier which means that I don’t know the carrier and I don’t know the lawyer that they have hired to defend their insureds.

I have spoken to colleagues about my adversary and have learned that he often makes accusations of ethical violation against opposing lawyers and in general is an unpleasant fellow to deal with.

A question has come up during Voir Dire that we cannot resolve on our own.  In civil cases a Judge is usually not present, but is available to rule on such questions.  They typically involve whether a juror should be excused for cause or whether a particular comment made by an attorney was inappropriate.

We go upstairs to the Courtroom and notify the clerk that we need to see the Judge for a jury ruling.  The room is crowded with attorneys because it is a motion day – a day set aside by the Judge to hear lawyers argue motions which have been made on paper.  We are told to wait in the courtroom.  Eventually, the name of our case is called and we rise to enter the well of the courtroom[1] so that we can enter the Judge’s chambers.  I hold open the swinging door to allow my adversary to enter.  He approaches me nose to nose as I am doing so, and growls at me: “You don’t fool me with your phony nice guy act”!

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This is the incident that I call to mind when the Chief Judge finds it necessary in 1997 to publish a document entitled “Standards of Civility”.

The community of attorneys who prosecute and defend physicians and hospitals in the metropolitan New York area is a relatively small one.  You come into contact with the same firms and many of the same attorneys on a fairly regular basis.  In fact, as a young lawyer, I had more occasions to become acquainted with lawyers who defended cases I was working on that with lawyers who were prosecuting similar cases.  I was fortunate to be on good terms with most of these lawyers, and some even became good friends.  Will Rogers said "It takes a lifetime to build a good reputation, but you can lose it in a minute."

Even before 1997, our conduct as attorneys was governed by a Canon of Ethics and Disciplinary rules which were rather strictly enforced, especially in comparison to most other professions.  It was unfortunately fairly common to read court decisions against attorneys based upon the proceedings of the grievance committee in the New York Law Journal and other publications on a regular basis.

I once analogized the relationship between plaintiff and defendant attorneys to a cartoon I saw as a child.  The Roadrunner and Wiley Coyote are walking together having a friendly conversation carrying lunch buckets.  They enter a fenced property and approach a time clock on the wall of a guard house.  They select their time cards and punch in before returning the cards to their place.

For the balance of the cartoon (representing their entire “work” day), the Coyote expends great effort chasing and trying to kill the Roadrunner, who manages not only to elude the Coyote, but to make him the victim of his own traps.  Suddenly, an air whistle blows.  They return to the guardhouse and punch out.

They leave the property as they came, talking amiably; the best of friends.

It’s a shame really, that in 1997 it became necessary to remind lawyers that we should all get along.

[1]The well of the courtroom is the area where the participants of the trial – Judge, jury, counsel and witnesses sit, separated from the public by a short wall with a swinging gate as depicted in the diagram.

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