Justice Is Blind (and sometimes dozes)

March 2, 1992

-         Author’s note:  This week’s story describes another incident from the same trial as last week’s entry, but which took place one week earlier.

Today, I called our Obstetrical expert to the stand and I conducted his direct examination.  One aspect of the case deals with interpretation of tracings of the fetal heart rate patterns made by electronic fetal monitors connected to the mother during labor. 

Here is an example of what these tracings look like:

 

When the tracings come out of the machine, they are continuous.  When copies are made for the parties to a lawsuit, the copies are made on normal 8.5 x 11 inch paper, meaning that each segment is no bigger than that.  In order to give the jury a sense of the continuity of the tracing over time, I taped the segments end to end and posted them on large boards displayed on two side by side easels in the Courtroom.  I then asked the expert to stand next to the easels and interpret the tracings for the jury.

            The Judge’s bench is centered in the Courtroom.  The jury box is against the wall on his left side.  Our Judge has a habit of sitting with his back to the Jury and listening to the evidence with his eyes closed.  Whenever an objection is made, all eyes turn to the Judge, who then swivels around in his chair and makes his ruling.

            Apparently, today, he found the interpretation of the tracings to be a little tedious.  As I was questioning the witness, my adversary raised an objection on the ground that I was characterizing the witness’s testimony.  All eyes turned to the Judge for his ruling.  The Judge did not move or speak.  My adversary gleefully commented that it was an eloquent commentary on my exciting presentation.  There was a fair amount of laughter in response, which appeared to startle the Judge, who then opened his eyes and turned around.

            My adversary was kind enough to explain to the Judge why he had objected.  Although it was clear that he had not heard the question at issue, the Judge sustained the objection. 

            The exchange was memorialized to the best of the Court Stenographer’s ability as follows;

Q. Okay. You have next mentioned that some of these decelerations look like variable decelerations?

A.    Correct.

Q. And some of them you said you can't tell what it is. Why can't --

MR. [Defense attorney]: I am going to object to counsel's characterization of the testimony, with something as significant as these tracings, Judge.

I will withdraw my objection.

Judge, did you hear what I said?

THE COURT: Not exactly.

MR. [Defense attorney]: Well, this is eloquent commentary on how exciting Mr. Pollack is this afternoon.

THE COURT: I just heard you say you had withdrawn your objection.

MR. [Defense attorney]: I am going to object to counsel characterizing what the doctor said. The doctor can describe what he saw.

THE COURT: Yes, let's get the answer from the witness.

I am sure that I am not the first trial lawyer to have a Judge rule against him in his sleep.  I look forward to the day when a sleeping Judge rules in my favor.