It would seem that serving in a jury should make one feel good, responsible… a proud citizen. Two days ago, as a juror in a civil case for the State of Washington, I am sad to report that I didn’t quite feel that way. This feeling was much in contrast to how I’d felt in the past as a citizen-juror… but then again, the other cases involved criminal law, not claims for personal injury resulting from a motor vehicle accident.
Many of us, certainly as we get older, have probably determined, or predetermined, how well our system of civil law works, accepting the fact that our views may be partially or totally tainted by the resolution of cases closest to us, often involving family and friends. In my case, this personal experience as a juror in a civil case gravely accentuated ideas I had held for years of the great need for reform in our system of civil justice in the US. It took this first-hand experience in the jury deliberation of a personal injury case to realize that blindfolding justice might be great symbolism for impartiality… but that a jury system may not be the optimal way to bring equity or remedy to a civil claim. Not a jury of “peers.”
Often we find ourselves in self-criticism of being a litigious society with the greatest per capita of lawyers of any nation (1 for every 265 people in the US vs. 395 for Spain, 488 for Italy, 593 for Germany and 1,403 for France). And the difference becomes far more pronounced when the numbers being compared are restricted to areas of civil law, specifically those involving personal injury or other issues entailing monetary redress.
Little wonder that a significant majority of lawyers in the US are unhappy in their chosen profession, income being the major culprit for those in the lower 75 percentile of the lawyer population. And a harsh reality for those who had to incur debt (student loans) to attend non-elite law schools; much harsher than for those who had chosen medicine, engineering or even a few other “less glamorous” professions. Newly-branded lawyers are quickly finding out that the widening income inequality taking place in the US during the last three decades has indirectly affected them… to the point that there is little or no room at the trough, having to rely on the top “5 percent” income/wealth group for their source of revenue instead of the “15-20 percent” of a generation or two ago.
My experience this time around as a juror in a civil case has served as strong validation to my concern for legal reform as it pertains to the composition and utilization of juries in many areas of civil law. And that concern has been for the adjudication of the best possible justice for both plaintiff and defendant, one least influenced by the skills of the attorneys representing them or the prejudices that jurors consciously or subconsciously bring to bear during the jury deliberations. The case summary that follows provided for me the validation I needed for claiming needed legal reform in our civil law.
Plaintiff, a 52-year-old man, had been involved in an auto accident 3 years before, as his car was rear-ended by defendant, and he was trying to obtain compensation to make him whole. Whole in terms of reimbursement for medical expenses incurred for a left elbow injury which caused epicondylitis, time loss on the job (earnings), eventual loss of job and lower future earnings, monetized pain and suffering (past and present), etc. As for the defendant, although accepting responsibility for the accident and expenses that defendant deemed relevant to the accident, he negated the nature and extent of some claims made by plaintiff. The proceedings became more complex as other medical issues and procedures extraneous to the accident came to be enmeshed in the case.
It was left up to the jury to decide [a minimum of 10 jurors out of 12 required for each decision] the amount of compensation the plaintiff was to receive in three different categories: (1) past expenses associated with accident and loss of earnings during the treatment period; (2) future loss of earnings; and (3) the ever-present in these personal injury cases of monetized “pain and suffering.”
From the very start, it became obvious, at least to me, that our dozen jurors were rallying around three different flags: 2 jurors didn’t seem to feel that plaintiff’s evidence had much merit, much less be preponderant; 1 juror was an unquestionably unrelenting advocate for the plaintiff; and the other 9 jurors, a group where I would include myself, although quite diverse in their leanings were ready to accept numerical compromise. Ten jurors were able to compromise in reaching figures for (1) and (3); but on (2), while the 9 compromising jurors had agreed on a $40,000 amount (a small fraction of the figure requested by plaintiff)… the 2 jurors siding with the defense would remain rigid at $0, while the juror siding with the plaintiff would stand firm on the high-figure amount, refusing the proposed compromise figure as a paltry sum… which forced a new vote where the 9 compromising jurors joined the 2 jurors siding with the defendant at $0.
That “paltry sum” of $40,000 which a juror’s uncompromising stand took away from plaintiff (in soccer it’s called an “auto goal” or “own goal”) was likely two-thirds as much as the rest of the judgment post-expenses… a bitter pill to swallow by plaintiff and his attorney with each getting approximately, after expenses, $30,000 instead of $50,000… as would have been the case if this articulate, intelligent and college-educated juror had exercised good judgment, and not personal passion, in the decision to stand by a conviction which took away compensation from defendant juror supported.
There needs to be a better way to bring equity in some if not all areas of civil law. One doubts that Thomas Jefferson, often quoted as the great defender of the jury system, would be a proponent of that jury system as we have it today in civil law.
My exposure as a juror in this recent trial confirms and seals for me a strong stand for legal reform in matters of civil law, even if it means a lower number of practicing lawyers and the adoption of a less litigious approach as our norm.
© 2013 Ben Tanosborn
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