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Trials and Tribulations: Part Three

The Huffington Post The Huffington Post 24/03/2016 Robert J. Elisberg
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The first two parts of this tale covered the plaintiff and defense each making their case in a two-week trial for which I sat on the jury at Santa Monica Superior Court. The admirable Judge Lawrence Cho on the bench. To quickly summarize, the case concerns a woman who was sitting on a chair bought at Cost Plus which broke. She suffered broken bones, had two surgeries, a great many doctors' appointments and physical therapy, and claimed to be suffering from CRPS (Complex Regional Pain Syndrome), a rare, but known debilitating and incurable form of chronic pain. Cost Plus admits liability, but its two expert witnesses found no evidence of CRPS. You can read Part One here, and Part Two here.

Part Three The Jury Tries to Make Sense of It All

After that weekend of pondering, and after listening to the final arguments and having time to think about it all, as I went into the deliberation room in the late afternoon, I'd come to the conclusion that I did believe the plaintiff's side as more likely. Especially since there only had to be that 51% standard. And ultimately that's what the judge's instructions were. This is not a case where we must find "beyond a reasonable doubt," nor do we need a unanimous verdict. As a civil trial, it only has to be nine jurors out of 12, and the standard is what we believe to be "most likely."
We didn't go into the jury room until 3 PM, so it would be a short first day because we leave at 4:30. Getting settled took a little bit of social maneuvering, but one member volunteered to by the foreman, and off we went. (I had decided early on that I didn't want to do it, for several reasons, so I was fine with the choice. My only hope was that we'd stay focused.) During the initial discussion, a couple of us suggested an early vote to see who felt that at least some form of chronic pain was involved here, or if the defendant was faking it. And it was all 12 votes that there was some form of pain, and not a scam. I had felt it was extremely important to take this vote, because it meant that whenever people questioned her "character" or specific uncertain details (which both came up from a few jurors), we could point to the vote that we unanimously agreed this was not a scam, no matter what you thought of her character or if you couldn't explain every single detail. It was a good theory, and did help. But not as much as I'd thought.
We also took a vote to find out at the start how many people felt strongly that CRPS was involved ("strongly" being the operative word) - which was critical, because it would impact our later decision on future monetary payments. And five jurors voted that they believed it was. I was one of those. And I was pleased to see that the doctor did, too, as well as a couple of the other jurors I particularly respected. This didn't mean the other seven didn't think CRPS was involved, just that some might not be sure yet that it was likely.
Before leaving for the day, we spent most of the time trying to focus on a similar, but importantly different question of did we, as a jury, believe that CRPS was "likely" involved and caused by a trauma. That didn't mean the direct breaking of the chair, though. As we were instructed by the judge - and as I and some others pointed out - if the CRPS was caused by either of the two surgeries, the defendant was still liable: because the second surgery was required to fix the first surgery, and the first surgery was necessary because of the chair trauma.
I also made a case at this point which the jury foreman said helped convince him that CRPS was "likely" involved. (That 51% standard.) The short version of my position was that the defense had two expert witnesses. And the second of those witnesses had made clear that he believed the plaintiff was scamming. But as I pointed out, we as a jury had unanimously decided she was not scamming. And that meant we had to throw out his expert testimony as being without substance. In fact, after saying that, most everyone jumped in and vocally agreed that his testimony was dismal.
We took a final vote for the day about this, how many jurors felt it likely that CRPS was involved in at least some way. The vote was 8-4. That was quite a bit up from the initial 5 who "strongly" believe it, though still one short of the 9 needed to vote her the large damages she's asking. However, there was a lot of discussion to go, so it would be interesting to see what thinking people did overnight.
And that led to the interesting final day.
Interesting not just for the deliberation, but because arriving at the courthouse in the morning, the place was surrounded by police officers, the area blocked off, police cars all over the front lawn and helicopters overhead. It turned out that a distraught man whose wife worked at the court drove his pick-up onto the front lawn, holding a knife to his throat and threatening to kill himself. Eventually, he was gotten out of his vehicle - whether by Taser or not wasn't clear - and taken to a nearby ambulance. We eventually were able to enter the building and taken into the jury room an hour late.
It was a fascinating day, complete with a couple of sort of "twists." Not in the dramatic, third-act story sense, but more of unexpected perspective.
Overall, for the most part, I found the discussion very thoughtful. Most people (eight of the 12) thought that the plaintiff did have some form of CRPS, and everyone felt she had chronic pain, even if it wasn't CRPS.
So, what we did was go through the entire Life Plan and its associated costs...line-by-line. That was 34 items in all, covering medical care treatments, prescriptions, home care needs and much more. Some items were reasonably quick to deal with, other were very long, thoughtful discussions. Quite a few of the Life Plan requests were dismissed entirely, most of the others were cut to lower levels. Only a handful were kept at the full total.
It was all dealt with a good amount of impressive thought. In fact, at the end of deliberation, after everything was all decided, I commented that though I didn't agree at all with many of the results, I was impressed by the serious thought that went into it all.
And so I was. But therein lies the first "twist." There's more later.
It was a smart, thoughtful jury. And I voted for three of the four questions we had to answer. (Past and future medical costs, and past and future non-medical, better known as "pain and suffering.") But was we sat back in the courtroom for the decision to be announced, I was disappointed with what we decided. It's not that it was unfair. It was eminently fair. It's that I think the perspective was narrow, and the plaintiff who eight of us had decided actually had CRPS and who all of us had decided had at least some sort of chronic pain got short shrift when it came time awarding her meaningful awards for the damage done to her.
Let's head back into the jury room.
There were about four of us who generally sided with high awards. And three jurors were in the middle. Two others shifted back and forth, though leaned towards uncertain if her needs were at the level being asked. That left three jurors who were pretty adamant the whole time about not awarding her much.
Again, this is fine in general theory. It's a mix of people all bringing their own subjective thoughts to deciding. But remember: all 12 had agreed she had some sort of chronic pain, largely for the rest of her life. And a full eight jurors (just one short of the nine needed for a decision) had agreed that she had CRPS, an incurable, debilitating condition. Yet that seemed to get ignored when it came to awarding her money for that lifetime pain.
And it meant, with three people largely against awarding much at all, with two always on the fence, that it became very difficult to get the nine votes needed for each item, in order to compensate the payment needed for lifetime care, as well as pain and suffering.
The problem too was that there were several people still questioning her "character," wondering if she was perhaps being greedy or shouldn't have filed a lawsuit so fast (it was maybe nine months, which isn't all that fast after an accident and surgery) or exaggerating her symptoms. Alas, I sat between two of them, so it was sort of like stereo indignation.
Some of the questioning of her "character" came from wondering about several of her actions if she "really was in so bad shape." It's understandable to wonder, but a bit inflexible in trying to accept that people act in many different ways than we ourselves might think, especially when in pain - sometimes, for instance, a person living in pain might do something we find unlikely simply because they have a need to feel normal or get some pleasure in life - and inflexible too in not ignoring, as was continually reminded, that the pain was not horrific 100% of the time, but had some ebbs and flows. And I also have the sense that for some of this questioning her "character," it might have come from the plaintiff simply looking really grumpy, almost disdainful the whole trial and not especially warm and "likeable." (This wasn't ever mentioned during deliberation, and I could be absolutely, totally, completely wrong, but it's how the constant distrust came across. Wondering is one thing, but having constant distrust is another.) Well, sure, the reality is that she did look grumpy. Really grumpy and almost curmudgeonly. Maybe even "untrustworthy." But then...she was in debilitating pain and had been for three years! And was facing it for the rest of her life. I think most people would look really grumpy. The problem this caused, as I said, is that you needed nine votes for every decision we made, so having three people pre-disposed to say "no" to so many things - and a couple other jurors always on the fence - meant it was an uphill battle the whole time for those of us who felt her illness was very real, very agonizing most of the time, and something that she would face for the next 40 years.
(To be clear, these three and the few others were all very diligent, paid thorough attention and were well-spoken in expressing their opposition. It's just that they were so dead-set by default on so many issues that the plaintiff didn't deserve much, if sometimes anything, that those of us arguing for more compensation were always arguing "down" from our awards, or giving in completely on lost-cause issues, which ultimately had ramifications.)
I also was a bit bothered that some of the decision-making got to the level of medical micro-management. It was absolutely our right to do so. And the process of deciding each line item was very thoughtful, and it all got a full airing. But we weren't there as her attending physicians providing her medical care. We were jurors. And no matter how fair and thoughtful our deliberation of such things were, I thought it went uncomfortably much too far. In trying to be fair, we were pushed around the bend. Into a land we had little reason or qualifications to be. At one point, we decided which treatment she should be paid for, even though she and her doctors had preferred the other. Yes, we had the right. But how small to use it?
Some of the argument was that at a certain point later in her life she would be on assisted living and gets some of those medical costs covered anyway. It's an understandable argument. It also took far too much for granted. Because we didn't know what extra care she would nonetheless need. And much of the argument was that the plaintiff didn't make a case that a specific treatment or medication was necessary - but our standard should have been that the defense didn't make a case that it wasn't.
And so we reached decisions on the two questions of medical care. The total being asked for about $4.6 million. We settled on about $1.1 million. That's a lot of money. But it's over 40 years. So, as big as the number sounds in bulk, it works out to paying medical costs of about $25,000 a year. For someone with a crushing disability and high medical needs, who we had decided unanimously had some form of chronic pain caused by a trauma the defendant admitted liability for. And it's a cut of 85% of what was being asked -- much of which will likely still have to be paid, even if some of the jury questioned it.
That left us deciding on pain and suffering.
She was asking for a lot. About $3.75 million for past needs and future. But again, it's for quality of life over 40 years. And as much as it is - and it's a lot - only the day before, ESPN reporter Erin Andrews received $55 million in her lawsuit for being spied on with surreptitious naked photos released. The two cases are not remotely the same. And we could argue which is worse - such horrible invasion of privacy, or a life-impacting debilitating injury. They're both terrible. The point, though, was that awarding $3.75 million isn't the HUGE, in the stratosphere figure it seemed, when looked at in full perspective. (And yes, I brought this up.)
It was another sense of perspective that came into play when one juror brought up the very small limits in California for pain and suffering in medical malpractice, just $250,000, while noting that those limits are generally considered unfair. And that became our base for discussion.
The problems with this are many. For starters, that paltry limit is absolutely considered unfair. Even the person who brought it up made that clear. Additionally, this wasn't a medical malpractice case. Third, to repeat, this wasn't a medical malpractice case. Fourth, there are other awards that juries can make in those instances that far exceed that limit, though for medical costs. Fifth, this paltry $250,000 limit was set in 1975 and hasn't been adjusted by one nickel for inflation in 40 years! And fifth, again, this wasn't a medical malpractice case!! And finally, sixth, it's critical to understand that this low-ball $250,000 limit (for medical malpractice) came about from an agreement made (40 years ago) in a bill written by the insurance companies to limit their own costs. It had nothing to do with fairness, what is right and protecting victims. If a botched surgery resulted in you losing your leg for the rest of your life, all you can get in California for pain and suffering is...$250,000. For any real, actual pain and suffering you may have, whatever it is, for a lifetime, the most you can get in California is (say it together) $250,000. That's because the insurance companies wrote the bill. And the added huge problem with this is, because the limit is so low, many people who have suffered massive pain and suffering - deaths of family members, loss of limbs, debilitating lifetime handicaps and more - can't even get into court because the amount is so tiny that it's far too low for a lawyer to take on the case, since they work on contingency. It's a horrific law on many levels. Created by insurance companies to protect their bottom line. Yet as bad as the law is, it's only about medical practice. It had absolutely zero (nothing) to do with our case. became the base of our discussion.
Several of us in the "upside" group wanted to give the plaintiff up to $2 million. One wanted to give the full amount, $3.75 million. But so many others only wanted to give that $500,000 basement, or perhaps maybe up to $750,000. One juror wasn't crazy about giving anything - zero for 40 years of chronic pain and suffering we'd agreed existed - but begrudgingly agreed that $300,000 would be fair. Keep in mind, when we do math again, that as much as $750,000 sounds like a ton of money - and is - it works out to less than $19,000 a year for quality of life.
After a lot of back-and-forth (a lot) and trying to be flexible, those of us who wanted to award multiple millions dropped down to $1 million - for 40 years of pain and suffering. The others edged up for $750,000 to $900,000. And there we were stuck. Eight votes for $900,000. Four for $1 million.
Again, remember: if anyone thinks all this is way too much money, a) you didn't hear the evidence from acclaimed attending physicians or know how enfeebling her incurable chronic pain is, and b) these were all jurors who had unanimously agreed she had chronic pain, eight of whom agreed she had the incurable, and worse CRPS.
There was one other hurdle that I don't think several jurors could ever get past. I got the sense from what was said by these few that although they fully accepted there were debilitating injuries, lifelong treatment, and devastated quality of life, they simply had a hard time awarding so much money to someone who, in the end, "fell off a chair." The problem is - the cause was unfortunately simple, but the results were crushing. As Shakespeare wrote, for want of a nail, the war was ultimately lost. Yes, she did just fall off a chair. But as a result, the rest of her life was pounded.
I tried hard to make a case for raising that $900,000 amount to $1 million, saying that the increase only worked to a piddling $2,500 a year. For improving a person's quality of life. For allowing someone with a lifetime disability an extra touch of comfort to move on in the world. But they wouldn't budge. And as much as $1 million was my bottom limit, I finally got fed up and offered a compromise. I would come down to $950,000 and vote for that, making it the required nine jurors, if the other eight would agree to go up $50,000. I just figured, much as it was below my limit which was far below what I felt deserved and needed, that being unable to reach an agreement for $50,000 seemed senseless. The other eight agreed, and we had a decision.
The past and present pain-and-suffering was $975,000. That made the total award (along with the medical award) just under $2.1 million.
When the decision was announced in court... neither side was very happy. The plaintiffs had asked for a bit over $8 million. The Cost Plus defendants had asked for $27,000.
I think most of the jurors were reasonably happy, though some thought it was a bit too much. I know that several thought it was far too little - an average of $50,000 a year for a life of chronic pain. Moreover, probably 40 percent goes to the lawyers who likely worked on contingency. So, it comes to maybe $30,000 a year to compensate the injured plaintiff for necessary and deserved medical costs (that will have to paid), as well as pain and suffering of a chronic, debilitating trauma. And I was one of those unhappy that it was much too little.
Which brings us to the other "twist." I'll get there in a moment.
After the trial, a few of us spoke with the lawyers for the two sides. And later, the plaintiff joined us.
Most of what was discussed was just "inside baseball," as the expression goes. Specifics of minutiae about the case, how the jury reacted to moments during the trial, and what was important in the deliberation. We said, for instance, that it made zero difference to us whenever the defense attorney kept bringing up how much the plaintiff witnesses were being paid for their time - we explained that we simply listened to what they said, and figured they were under oath and were testifying honestly. (All except his second witness, who kept screwing himself over almost every time he opened his mouth.)
One of the plaintiff attorneys mentioned that they were wary about trying the case in Santa Monica, which is known for being a tougher courthouse than downtown L.A., since the jurors here tend to "hate" lawyers more, which generally works against the plaintiff bringing the case. I'm surprised, since I thought jurors are assigned randomly. And surprised why a Santa Monica court would be more pre-disposed against lawyers.
I was a little taken aback by how bothered the defense attorney was at the judgment - he said he really didn't believe the plaintiff at all and, in fact, thought she was lying about it all. That was something the jurors not only dismissed, but were unanimous. Even our most reticent naysayers agreed that she had some manner of chronic pain, and eight jurors believed she had CRPS. In fact, it was our acceptance that the chronic pain was absolutely real that made us dismiss the evidence of one the defense's two witnesses.
We also were told that only the plaintiff's attorney paid for our pizza lunch delivered to the jury room. Cost Plus wouldn't split the bill. (They didn't have to, and at that point they probably thought we were deciding against them, which we were. But it was still interesting to learn of the pettiness. But, they only wanted to pay $27,000 in the trial judgment, so it sort of makes sense.)
An attorney for plaintiff was wondering what strategies could have been handled differently. We discussed that for a bit, but ultimately I felt the lead attorney did an excellent job, and he came off reasonably well. There were perhaps too many witnesses though they were fairly necessary. Ultimately, the jury was the jury, and it will act as it rambles.
One personal thing I learned was why I had gotten selected for the jury. "It was when you said you were skeptical of both sides," the defense attorney said, offering me a hint for next time. "Lawyers love that." Lesson learned. (Not that I had to explain myself further after the trial, it was a tad late for that, but I wanted to clarify that when I had said I was "skeptical," it wasn't because I'm cynical. In fact, I said to him I'm quite a positive person, but when people tell me "facts" out of my experience, I require a foundation to believe them. "I understand," he replied. "But we love skeptics.")
But a few things in our joint conversation stood out. No, sorry, that's wrong - they leaped out. And then they grabbed you by the lapels and shook you silly. And they were such a twist to my perception that it was like they became a tornado.
The first thing that leaped out is when I spoke with the plaintiff, and although I'd believed previously that she had CRPS, I now am absolutely certain of it. The trial was over. Her stress of the several-year ordeal could be released, and she could let her hair down. And yet close up, talking to her at length, this was a woman who clearly was in physical pain, who held her body awkwardly, whose face was noticeably strained. Whose hand was held twisted. Whose voice was halting. Fighting back tears. Withdrawn, protective, walking slowly. She had nothing to prove to anyone, it all was over. Could I be wrong in my observation? Absolutely. Could I be right? I am.
Second, I learned that long before the trial, one of the attorneys for the plaintiff had wanted to settle, but Cost Plus flat out refused. The amount the attorney suggested, that was turned down, was...$2.1 million. The judgment by the jury was only $56,000 less than that! This whole trial and all its massive costs, which are lost to the plaintiff from her award were unnecessary and could have been avoided. For that exact same amount.
The third thing was ...well, ghastly. We had awarded $2,044,000. The plaintiff had a judgment level that had to be reached in order for her not to have to pay the costs for expert witnesses on both sides. If she reached that limit, Cost Plus would have to pay for the expert witnesses. If she was under the amount, she was liable for the amount. That level was -- $2.1 million. She was just a trifling $56,000 short. (I'm still galled by this, and by my own actions, accepting lesser amounts throughout the deliberation. In fairness, I had no way of knowing this. But I still feel terrible. Just $56,000.)
The fourth matter was...well, also ghastly. It turns out that the original settlement offer from Cost Plus was only something like around $250,000. (That's not the ghastly part.) During our lunch break, when it was clear we'd been out a long while which likely meant we had believed the plaintiffs and were trying to figure out how much to award, Cost Plus panicked that we might award the whole amount, so they finally, after years of refusing, raised their offer. It was increased to $3 million. Because the plaintiffs believed the same thing, that because we'd been out so long, we were considering a huge award, the woman turned down the offer. She was devastated. Crushed. She'd lost a million dollars by her decision. I had nothing to do with that, of course, but still felt awful for her, including my sense of not being part of getting her what she expected and deserved. Ultimately, no, I don't think I or the other few would have been able to get the injured plaintiff much more. But it still feels lousy being party to such a lowball judgement. And it was lowball. Because what this means is that even the defendants proposed that the plaintiff get a million dollars more money in a settlement offer than this jury did.
The reality is, with the money that goes to lawyers - and expert witnesses - and other medical costs the plaintiff incurred, and would also have to pay forever in the future, she was left with a comparatively small amount for the next 40 years. As she was imploding on herself, I tried to explain that she had no way of knowing when she made her decision. And that though she was unhappy with the judgement amount, less than settlement offer, I tried to give her something positive, that the way the juror room was going, she could have even gotten a great deal less.
In the end, I know she got $2 million. And that sounds like a lot, and as a bulk amount with no context, it is. But she doesn't get a great deal of that money. After all, 40 percent goes to her lawyers. And she has to pay for all the expert witnesses on both sides (which might be as much as $100,000.) And most of what remains goes to medical costs that she has now for the next 40 years, and which have to be paid. And whatever is left to make up for a quality of life that most of us take for granted, she'll likely have to use much of (if not most) to cover medical costs that the jury cut by 85 percent. And she has a debilitating, often-agonizing illness for the rest of her life that eight jurors agreed to. And that all 12 jurors agreed was chronic and painful.
It was an accident. Cost Plus didn't sell a line of shoddy products. A chair broke. A rare trauma occurred. A woman had a lifetime disability. And Cost Plus admitted liability for it. It was an accident. And so unfortunate. But unfortunate too is that they refused to pay a fair settlement at the beginning, and a trial could have been avoided for far less than they later offered.
And I feel lousy that those of us who felt the plaintiff - who has a difficult life ahead of her, for many reasons - couldn't get even close to what she deserved and needed, or what could at least help her quality of life more. I feel lousy, not because I wasn't convincing enough to get what I thought was decently fair and didn't win My Arguments - but because we all agreed that she actually had a chronic pain that would likely last for the next 40 years, and I couldn't keep people focused on that, and was so accommodating to a few people who weren't being accommodating in return, until our initial agreement backtracked on what we awarded so much. I just feel lousy. Actually, "lousy" doesn't do it justice. I feel gnawed. And as days passed, I got angrier about how the judgement was reached. However, lousy will suffice. But at least today, lousy as I feel, I don't have incurable chronic pain. However, I'm very glad that we were able to get her what we did, in the face of those few who would have been fine giving next to nothing. Everyone acted thoughtfully, and reasonably well-intentioned. Many, impressively so. But, as time goes on, most-especially after my post-trial conversation, I am even more convinced they were unfortunately profoundly wrong. However, she got a judgment in her favor. She'll be able to pay some medical bills for a while. And she appears to be a strong-willed person. Who has a deeply supportive family. Even if that won't carry her as far as she needs, I'm glad she has that foundation. And wish her well.
And I'm appreciative how terrific Judge Lawrence Cho was. And his court assistant, Lisa, who was a discombobulated, yet efficient joy. We never learned her exact title, or last name. She almost doesn't need one. She's more mythical that way.
A final comment. During deliberation, one of the jurors quipped that if he was ever a plaintiff, he hoped he had me on the jury. It was a cute joke, and I laughed - but I also said back with a smile, but pointedly, that if he was ever a plaintiff and had been wronged, and deserved everything he was asking for...I hoped I was on his jury, too. And the truth is, too, that if he was ever defending himself against a false and unfair charge, he should hope I was on that jury, as well.
God forbid I'm ever called to serve on a jury again, but if I am and asked if I can be fair, I know what I'll say. Yes, absolutely I can be fair. I will be completely fair to all the evidence I hear on both sides. But - I will in no way be fair in the jury room. My responsibility is not to be fair to who the jurors are, nor them to me. It is to be fair to the evidence. It is to be fair to the plaintiff and defendant. It is to be fair, as well, to the opinions of the jurors. Sometimes that may mean reaching a reasonable accommodation with other jurors who are willing to accommodate equally, balanced in fairness. Life, after all, is full of uncertainties. None of us has all the answers. But the goal isn't to reach a verdict. It's to reach the right one.
And also, I'll do my best to keep that "I'm skeptical of all sides" to myself...
One thing above all is clear.
An actual court case is worlds different from what's seen in movies. As it should be - you'd bore the audience silly. A real court case is long, slow, messy, monotone with few moments of riveting drama. Or often unriveting drama.
And then we went home.
To read more from Robert J. Elisberg about this or many other matters both large and tidbit small, see Elisberg Industries.

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