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.