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”!

                                                              *****

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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The Classic Reaction

January 14, 1993

                A very lengthy trial ended today. 

The case involved a claim of Obstetrical negligence causing avoidable brain damage.  The child has cerebral palsy.

There were two different Obstetrician defendants each represented by his own attorney.  One rendered care to the mother during her pregnancy.  The claim against him was that he failed to take appropriate steps when the mother complained of decreased fetal movement.  The other was providing coverage for the first when the mother called to complain of an emergency; she had felt no fetal movement whatsoever for many hours.  He told her to meet him at the hospital, which she did.  He monitored the baby’s heart rate for three hours and ultimately delivered the baby by Cesarean section.  The claim against him was that he failed to recognize fetal distress and delayed the Cesarean section.

We started taking testimony in early December 1992.  My Obstetrical expert was on the witness stand on December 16, 1992.  The defense lawyer brought boxes of transcripts of his prior testimony into the courtroom on a hand truck.   He spent all afternoon using those transcripts for what trial lawyers call “collateral attack”.  In plain English, it means throwing dirt.  The lawyer is trying to discredit the witness using information which is not directly related to his testimony on direct examination, but which may show bias, prior bad acts or otherwise reflect poorly on credibility.

                The attack was withering, and by day’s end, he had not finished, meaning that the witness would have to come back another day.  When the Judge told that to the jury, they sent him a note.  They wanted to take a break for the Christmas and New Year’s holidays and come back in January to hear the rest of the case.

                The Judge read the note to me and the other two lawyers.  We conferred and decided it was best to accede to the jury’s request.  It was the luckiest thing that possibly could have happened to me.  My wife and I had scheduled a vacation with our son who was four years old at the time, to go to Disneyworld in Florida during that holiday season.  As the departure date neared and the trial was nowhere near completion, we made arrangements for my Mom to go in my place.  Thanks to the jury, I was able to travel with my family.  Sorry, Mom.

                The schedule was set; we would interrupt the trial until January 4.  On that day, today’s witness would return following which defense counsel would present their witnesses, followed by summations and charge.

                We were all amazed when the jury did in fact return.  Needless to say, my adversary had used the time well, and was armed to the teeth to conclude his cross examination.

                We were able to finish taking the testimony and complete the trial.  The summations ended yesterday afternoon.  The Judge charged the jury this morning.

                Shortly before 5 o’clock we were advised that the jury had reached a verdict.  The court clerk held a copy of the questions that the jury has been given to answer.  He asked the foreperson of the jury to rise and read the first question and asked “What is your answer?”  He proceeded in the same way until all of the necessary answers had been given.

                Today I enjoyed the biggest victory of my career to this point; the jury awarded my client $10 million dollars and they found both defendants 50% responsible.

                After the jury had been excused some routine legal matters were addressed.  The lawyers almost always shake hands and congratulate one another on a job well done.  Today was no exception.  At one point, the Judge observed to his law secretary aloud, “I believe this is the largest verdict we’ve ever had.”

                One of my adversaries (the guy with the hand truck) is a little bit of a wise guy.  Don’t get me wrong, he’s an extremely talented and very dangerous person to try a case against.  During the course of the trial, he and the attorney for the other doctor cooperated to the greatest extent possible, as is very common.

                Immediately upon hearing the Judge’s remark and without missing a beat, he turned to the other attorney and said “Congratulations!” Both were smiling broadly as they gave each other a hand shake from above their heads to below their waists.   

Out of Town Deposition

Monday, December 16, 1991

I was in my office when the senior partner came to the door.  I knew something was wrong, because he never came to my office.  My office was in a corner of our building facing the street.  His office was at the opposite end of the building.  It was on the other side of the building.  My office could not possibly be further away from his unless I was on another floor.  In fact, some years ago, when I returned to the firm after a brief hiatus working elsewhere, I was in a completely different building while construction was being done here.

Not only was it unprecedented for him to come to my office instead of summoning me to his, but he was standing just outside the office in the doorway, shifting uncomfortably from one foot to the other and avoiding making eye contact with me.

“David”. He said.

“Yes”?  I replied.

“There is a deposition on Friday on the such and such case in North Carolina.  Gil is on trial, so you have to do it”.

Yes.  Gil was on trial.  He was trying a case on behalf of a brain damaged child where the claim was Obstetrical negligence.  It was a file that had been stagnating while it was assigned to one of the other attorneys in the office.  Then it was reassigned to me.  I did the depositions and certified it as ready for trial.  Then it was assigned to Gil to try.  I may have felt a bit slighted.

I did have a problem.  My wife and I had purchased tickets nine months earlier for the biggest hit on Broadway, “Miss Saigon”.  The tickets were for Thursday night.  We were bringing her parents and my mother who we had purchased tickets for as their Chanukah gifts.

Also, the following Wednesday was Christmas.  We were planning to go to Vermont on Friday and stay until Christmas day.  We had a share of a house together with another couple.  We would bring my three year old son, they would bring their two year old daughter.  I don’t ski, so I would watch the kids while the other adults were at the mountain.

“I have plans with my family”, I said.

“Change them” was the reply.

I made some phone calls.  There was a very early morning flight to where I had to go.  The defense attorney agreed to move the deposition starting time from 10 am to 11 am so I could fly in that morning rather than the night before.  I would be able to attend the show with my family and still do the deposition.  He told me that he had spoken to Gil who said that it would only take an hour to do this deposition. 

Tuesday, December 17, 1991

The senior partner summoned me to his office. 

I sat across the desk from him.  He held up a sheaf of papers.  “I’ve prepared some questions for you to ask at the deposition” he said.  He was holding twelve typewritten pages of questions. 

I was stunned and hurt.  I had been working for him as an attorney since 1981 (minus 16 months between September 1984 and February 1986).  I was a law clerk in his office for a year and a half before being admitted to the bar.  I had deposed hundreds of witnesses in that time.  Even when I was completely green, doing my first deposition of a doctor, nobody had ever written out questions for me.  In fact, I was unaware of anybody ever having written out questions for anybody for any reason.  I was also angry.  If this deposition was going to be done with the benefit of a script, why was it necessary for me to go to North Carolina to do it?  Why couldn’t anybody capable of reading do it?  I expressed my consternation.

“I can’t believe you” he said.  “I’m trying to help you and you’re ungrateful”!

Well, I attended Miss Saigon with my family on Thursday night.

I was on an early flight to North Carolina the next morning.  I took a cab from the airport to the air force base where the doctor who had been a resident at the time of the alleged malpractice (in Ohio) was serving his commitment to the military in exchange for paying for his medical education.  I conducted the deposition using the “script”, but also asking follow up questions and generally putting forth my best effort, as I always tried to do.

By the time I had completed the questioning of the witness, the defense attorney and I were both late for the flight we were taking out of North Carolina which would take us to connecting flights – for him back to Ohio and for me back to La Guardia in New York.  Luckily for me, he had rented a car.  He offered me a ride to the airport.  When we got to the gate, I ran out to hold the plane while he returned the car.  That is literally what happened.  We just made the flight.  We parted when the plane landed, and I caught my flight back to New York.

It was about 10 pm Friday night when I got into my car in the short term parking lot.  From there, I headed for the house in Vermont where my wife and son and our friends already were.  When I arrived at the house shortly after 2 in the morning Saturday, the adults were waiting for me.

The next morning, we were all in the kitchen.  I was making breakfast for everybody.  At around 10 am the phone rang.  My brother-in-law was staying at our house watching the dog so we didn’t have to board her.  I answered the phone.  “Dave” he said.  “Your boss just called.  He wants you to call him at the office.  He sounded really angry.”

“Okay.  Thanks, Alan”.

I called the office and he answered the phone himself.

 “When were you going to report to me”? he asked. 

“What do you mean, report to you”?  I replied.  I was really puzzled now. 

“When were you going to tell me what happened at the EBT “?*

“I hadn’t really thought about it”, I said.  “I guess next week.”

“What do you mean”, he said.  “What about Monday?”

“Well, since we’re off Tuesday and Wednesday I thought I’d take Monday off.”

“Who gave you permission”? He demanded. 

“I didn’t think I needed permission to take one day off after all these years.”

“When were you going to report to me”?

“I don’t know” I said.  “I guess when I got back”.  Nobody had ever showed the least interest in hearing about a deposition I’d done before, not even when I tried to tell them.

“Back from where”? He asked. 

“Vermont”, I said. 

“I told you not to go”, he said.  He sounded really angry.

“I did the deposition”, I replied.  “I didn’t see any reason why I shouldn’t go”, I said. 

“You’re not being smart”, he said.  “I like smart attorneys working for me”.

Now I was fuming.  It was then and there that I made up my mind to look for another job and leave his firm for good.  I felt as though he believed he owned me and I couldn’t even have time with my family.

*(examination before trial – another term meaning deposition or pretrial testimony)

Captive Audience

A trial lawyer’s “performance” in the courtroom is unique among professional efforts in its ephemeral and unappreciated quality.  Ironically, every word that is uttered is transcribed verbatim, but unless there is an appeal, no one will ever read it.   It would be easier to get your friends and relatives to look at pictures of your vacation.

Months or even years of preparation may be invested into the trial of a case.  During the trial, a lawyer may forgo all other activities to be devoted body and soul to the effort, even to the point of losing sleep and weight.  Unlike an actor or musician, the result of that effort is witnessed by no more than a dozen people or so, and it is really only the six who ultimately make the decision that matter (which may often include one of the alternate jurors). 

Nobody volunteers to listen to a trial lawyer.  The Judge and the court staff are paid to be there.  The jurors receive a summons and appear under threat of legal penalty if they do not appear.  Yet once they are chosen, the jurors become imbued with the power to make a decision which will affect the lives of strangers and will have the force and effect of law.  Right or wrong, the decision they make will represent justice for the parties to that case.

From the beginning of voir dire (or more likely from the time it is first anticipated), until the verdict is returned and perhaps even longer, the trial lawyer is obsessed with the jury.

That’s not hard to understand.  In any given case our success or failure will be determined by the jury.  They are the sole source of any sense of approval or rejection.  During a trial, everything we do or say is conceived and executed for the sole purpose of persuading those six people that at the end of the case they should find in favor of our client.  Make no mistake; any effort to win a jury trial is synonymous with winning over the jury.

Unsurprisingly therefore, books have been written about how to select a jury.  People earn a living as “jury consultants” advising lawyers what questions to ask and which prospective jurors to accept or reject.  A substantial body of research has become available based upon the behavior and responses of “focus group” jurors and interviews of actual trial jurors in the immediate aftermath of their decision, all in an effort to aid an attorney in identifying and selecting jurors who may be more receptive to his client’s proof, and perhaps more importantly, identifying and excusing potential jurors who would be incapable of finding in favor of the client based upon life experiences, relationships or firmly held beliefs.

What an awesome responsibility it is that we thrust upon ordinary citizens.  If the process had no history, one might question the wisdom of such a method.  Yet it has been essentially unchanged since this country was founded, and for literally hundreds of years before that.

A famous author by the name of Anna Quindlen wrote an essay entitled “Duty?  Maybe it’s Really Self-help” about her own experience with jury duty[1].  The courtroom she says is “undoubtedly a place in which trust is put squarely in human beings” with all due respect to the inscription in most courtrooms that it is “In God We Trust”.

Those in whom this trust is reposed endure much; hours of waiting, tedious questioning (sometimes personal) to determine bias or interest, days or weeks of intense listening and the sacrifice of attendance at work and other activities.  At the end, they have a decision to make which may be difficult; there may be disagreements among them from which somehow a consensus must be reached.

Yet Ms. Quindlen’s perception is that “…service on a jury remains perhaps the only public service that, for all its shortcomings, its inconveniences, its impracticalities, still has the power to elevate an ordinary citizen.”

She also opined: “Serving well on a jury requires the highest level of human nature, the part that is thoughtful, intelligent, empathetic and fair.”

It is because of the sacrifice and the good intentions of every juror that a lawyer feels gratitude to those who served, even if they disagree with or are disappointed by their decision.

A lawyer should never blame the jury for an unwanted result; it should be viewed as a lesson – there was failure on the lawyer’s part to make things sufficiently clear or to provide all of the information the jurors needed, or perhaps an error in voir dire in allowing one or more people to serve who were too strong willed or adverse to the client’s interests, and sometimes, perhaps in taking the case to trial at all.

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[1] Newsweek magazine, May 7, 2001

The Legal Pad Lady

May 1987

I represented a plaintiff at her examination before trial.  She was questioned by a nervous, inexperienced female attorney.

I knew I was in trouble when she set herself up across the table from us with no fewer than 5 different legal pads.  The questioning was tedious, as it always is.  A discovery deposition is different than trial testimony in several ways.  Rather than try to focus on the main point of the case, it is an opportunity to ask a wide range of questions in a search for information that might be helpful to your side later on.  There is no jury to be disgusted by the personal or offensive nature of a question.  There is no Judge present to rule on objections, so you either allow the witness to answer or face the possibility that your objection will be overruled at a later date and your client required to reappear to answer questions not previously answered.

I think some lawyers conduct these depositions as if they live in dread of being criticized for leaving a particular question unasked, and so they keep going until they have simply exhausted their imagination and cannot think of another question to ask.

This attorney could not ask a question without referring to one of her legal pads.  All of her questions were written out, but she was constantly switching from one pad to another.  She would then flip the pages of the pad looking for questions she did not remember asking.

Towards the end of the day I began to become extremely upset and impatient.  I began to behave badly.  When there were pauses of several minutes between questions, I started threatening to terminate the deposition unless she asked another question.  I repeatedly asked her during the pauses if she had any further questions.

What had been an ordeal for my client and I had now become an ordeal for her.  By the end of the deposition, she had to take a break because she had begun to weep.  I was not sympathetic. 

Flashback:  April 1982

The first time I met the girl I married was when she showed up as a freelance court reporter sent to take the testimony of a witness I was questioning in Brooklyn. 

The deposition went a little late.  She happened to mention (and I believed I detected a note of annoyance in her voice) that she had missed her train to Eastern Long Island.  I offered her a lift.  She replied (in what I interpreted as an unnecessarily scornful way) that I could not give her a lift because it was too far out of my way.  I told her I didn’t mind.  She refused again.  The defense lawyer razzed me in a juvenile, locker room way about being rejected unceremoniously.  His exact words may have been "Oh!  Snagged".

December 1987

I threw a surprise party for my wife on the occasion of her 30^th birthday.  She was very surprised when we walked into the house and it was filled with our friends yelling "Happy Birthday!" at her.  But by far the bigger surprise was that I had successfully planned and executed a party without help and successfully kept a secret.

The following week she was at an office in Manhattan to work on a case with a woman attorney she had become friendly with.  While they were waiting for the other attorneys to show up she began showing her pictures which had been taken at the party. 

At that moment, one of the defense attorneys – a woman – entered the room.  “Pictures!”  she exclaimed.  “I love pictures.  Can I see”? 

After looking at a couple of pictures, she came to one of my wife and I seated together on my recliner.  “Is that your husband”?   She gasped.  “I hate him!”

“Well I don’t” said my wife indignantly.

She told me the story when she got home.  It had been the legal pad lady.