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Trials and Tribulations

The Huffington Post The Huffington Post 22/03/2016 Robert J. Elisberg
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A couple of weeks ago, I wrote two pieces about my journey diving into the world of jury duty. I'd received a summons for the Superior Court and was assigned to Santa Monica. Much to my dismay, the other jurors told me I was the only person they were sure would be selected to serve "because you seem so fair." And alas, I was indeed selected. Though I wasn't allowed to write about the trial while it was in session, I could write about the jury selection process before the case actually began, which I did here first, and then followed-up here for the second day.
The two-week trial is over now. And I'm free to write about it. Let loose the hounds of hell...!
Bear with me, this will be very long. It was a two-week trial, after all. For people interested in such things, you will hopefully appreciate the observations and details. That is the intent here. Most people don't ever sit on a jury, and most-especially so for two weeks. And this was a trial, though about a simple matter on the surface, that had some unexpected depth to it. So, this is meant to be a record of what it was all like. It runs about 10,000 words. That's 17 pages. Yes, really. You've been forewarned. I've tried to make it interesting and human. Not dry law. Whether I succeeded, as Dickens wrote, "these pages must tell." But not to worry -- because it's so long, I've decided to make it a mini-series, and have divided the piece into three separate segments, which I'll post on successive days. The opening statements and plaintiff. The defense presentation. And the jury deliberation. For those not even remotely interested in such matters, though, stop here. Or jump back here at the end to find out the result...
All rise. Court is in session. Judge Lawrence Cho presiding. You may be seated.

Part OneThe Plaintiff Sigh

What was particularly intriguing from the very first day is that, as much as no one wanted to serve on a two-week trial, once you're selected, your mind settles in and you accept the responsibility. What also was fascinating is how, after the two opposing counsels' opening statements, the perception of this particular case was so significantly different from the hints we got during the jury selection process. During jury selection, from questions that were asked by both attorneys, it was clear that a woman (the plaintiff) had fallen and injured herself when her chair broke. The company being sued was Cost Plus. They admitted liability. What was at issue, it was obvious, had to be the amount of damages. What was also obvious was that the two sides were massively apart, since this otherwise seemed to be a case that should have been easy to settle.
As a result of this perception, several prospective jurors ended up not making it onto the jury, saying that there was no way they could be fair. They either were involved in businesses that had had devastating nuisance suits - in a couple instances, these were people involved in the furniture industry who'd had lawsuits - or they felt that they couldn't ever give the kind of judgements it seemed the plaintiffs were asking.
(At one point, the number "millions" was bandied about, which turned a lot of heads. At another point, a lawyer even asked about whether jurors could see themselves awarding "ten or twenty millions." To be clear, none of this meant that that's what was being asked for. For all we knew, that might just have been the lawyer's way of gauging a juror's mindset. But it was the perception of many jurors.)
But perceptions weren't limited just to prospective jurors. Once the final jury was selected, and the chosen-jurors were released for the day and standing in line to get our parking tickets validated, several were commenting about what an uphill battle the plaintiff would have, asking for what they presumed was such a large amount of money for falling off a chair. (Jurors aren't supposed to discuss a case between them until deliberation, but people will be people.) I did chime in to say we should be fair, since we didn't know what her injuries were, or what her job was if there was loss of profession, or what other factors might be at play. As we were to find out the next day, there were a whole lot of other factors at play.
The jury, by the way, seemed to be a pretty good mix, and far more interesting here in Santa Monica than those I've crossed paths with in downtown L.A. We have two doctors on the jury - which is surprising since medicine was clearly going to be central to the case. (One of the doctors even teaches at UCLA and has worked on cases with one of the doctors who'll be called to testify, though they haven't met. I suspect that both sides felt their case was so strong that doctors would be able to see they and they alone were right. There were also a couple of lawyers on the jury (one of them licensed in Argentina, but a paralegal here in the U.S.) There was a CPA, a former social worker, and another a small business owner. One of the jurors works in advertising, and during a break, I heard him mention having what seemed like some sort of involvement with the "live video" that Gwen Stefani had just done for Target during the Grammy Awards broadcast. I asked if that was his firm, and he said that in fact it had been his idea, and he oversaw the whole project. Overall, it seemed quite a reasonably sharp group. In fact, during his final arguments, the plaintiff's counsel commented that this one of most intelligent juries he's ever worked with. Mind you, I suspect that that isn't the first time he's used that line. (Along with "I'll respect you in the morning.") However, when the defense counsel said the same thing, he gave specifics why he felt that way - watching jurors take notes throughout the trial, and all the questions (and good questions) they sent notes to the judge to ask. And the judge commented on all that after the verdict, too. Sure it was understandable that lawyers want to play nice with the jurors, but I do think it's a reasonably sharp group.
(I'm biased for another reason. Of all the many questions the jurors passed to the judge, two got the witnesses who were asked to say, "That's a really good question." One was asked by the doctor, who had a very detailed medical question - and the other was by...well, me. Perry Mason, watch out. I am now tied with Clarence Thomas.)
Once the trial began, and the opposing counsels made their opening statements, that was when we had the first and most-pronounced surprise. It was so clear that this was, indeed, as I had suggested earlier, a significantly-deeper matter than the perception had been during jury selection. It wasn't merely about falling off a chair, but centered around a debilitating medical condition called CRPS (Complex Regional Pain Syndrome), which is rare but not uncommon, a medical problem that is persistent, can bring about chronic pain that regularly reaches a 7-8 level on a scale of 10, has such hypersensitivity to the slightest touch (including simply wearing light-cotton clothes in that area - in this case, the arm) that it brings agony to the person, sensitivity to temperature, weakness so debilitating that objects can't be held - and though in some cases with treatment the conditions can be limited a bit, it has no cure. There were two surgeries, and well-over a hundred doctor visits and therapy sessions. Compounding this - though having nothing specific to do with the claims, though stress can exacerbate the condition - was that during the process the plaintiff went through a divorce ...and her young son was diagnosed with a terminal illness. (You wouldn't write this into the most over-the-top soap opera.) The young boy was initially only given a few weeks, then months, and it's been three years and he has apparently been responding well to treatment. But the illness is still profoundly critical. And the husband has continued to live in the home, so as to be there for his son.
So, no, it was not a matter of someone just falling 18-inches off a chair, as one of the dismissed, prospective jurors petulantly spat out with his arms crossed..
After these long, opening statements, during a break when the jurors went into the hallway, the general reaction among us was basically, "Well, okay, that's certainly not what we expected." And also, that it's a shame all those close-minded people who'd made up their minds that this was just a silly nuisance suit from someone who 'fell 18 inches' from a chair weren't still in the courtroom to hear how grossly wrong they were."
The trial was scheduled to take so long because the plaintiff had about 15 doctors testifying - most as treating physicians and pain management MDs (she had a lot of both), along with several expert witnesses. (I must say that the level of doctors she had found for treatment was seriously impressive, which eliminated the question of shady, fly-by-night diagnoses, anything for a buck. There could be opposing views from equally eminent doctors, but they couldn't be dismissed as not knowing what they were talking about. One had been the team physician for the Minnesota Vikings and Minnesota Twins. Another worked at the famous Kerlan-Jobe Orthopaedic Clinic in L.A. (that I'd long heard of for decades, a leader in the field of sports medicine, where the now-renowned "Tommy John Surgery" was first performed ) and was himself the on-ice doctor for the Los Angeles Kings. Another taught at UCLA, another taught at USC, another was one of the few experts in the country on CRPS (and is even currently conducting a study on the topic), and one of her expert witnesses did forensic medicine for the U.S. Justice Department.
(One juror noted during a break that he felt by the end of the trial we would all qualify for a medical degree...)
In fact, early on, because most of the doctors were largely testifying to the same thing about her condition, only from different perspectives and for different time periods, there were days I felt like shouting out, "Okay, we get it. She's in chronic pain, has hypersensitivity, limited strength in her arm and understandably got depressed. And the symptoms suggest CRPS, but it didn't show up immediately. We get it. We get it! Let's move on to the defense to try to explain why it wasn't CRPS and maybe not even chronic pain, and then you can cross-examine them all you want and..."
Okay, obviously you can't do that, it's considered such poor form, and also the parade of high-end doctors supporting each other's recognition of such a difficult to spot disease from their unique perspectives is actually an important, indeed utterly-critical part of the plaintiff's case, and showed the level of high-end patient care. Moreover, the evidence also has to be entered into the record. But the general point of their similar observations was spot-on clear early on: the patient not only had chronic pain, but it showed the symptoms of CRPS and even reached the level of certain diagnosis for several of the doctors. What the defense witnesses and experts showed was another matter. And was to come.
What was interesting, too, was the demeanor of the two opposing attorneys. During jury selection, the counsel for the plaintiff was snarky in his repeated attempts to be sarcastically witty (which is okay, though the Improv it was not...), but often oddly a bit insulting (at one point, for example, asking a potential juror if he thought he'd be smart enough to hold his own with the others) - yet during the trial, he came across as reasonably gracious, quite personable, and dedicated. On the other hand, the defense counsel was grandfatherly and almost cherubic during jury selection, very personable, but during the trial was continually pissy, impatient with witnesses during cross-examination and even got into heated arguments with several witnesses who were bothered feeling he was bullying them. (He was.) Somewhat surprisingly, the sense I later got was that neither reaction really impacted jury decisions much, if at all. Everyone is listening to the witnesses, not the demeanor of the attorney. And reactions to the attorneys did not come up once during the jury deliberations.)
One odd tactic of this defense attorney would be that he often asked repeated, scathing questions to acclaimed doctors about their process. "So, you didn't also just tap her other scar to see if it was tender?" "No." "Didn't just tap it to see her reaction?" "No." "Well, why not, it would have only taken eight seconds?" "It wasn't necessary for what I was doing." "Not necessary to see if there's be a response??" "No, I had the information I needed." "Didn't want to just tap any place else??" "No, it wasn't necessary." "You didn't just tap-tap-tap anywhere else, just a simple tap?" "No." And so on. Repeatedly. It never scored any points. The jurors figured that an expert doctor with 20 years of experience had a better idea how to conduct an exam than a lawyer.
It was this sort of thing which got a couple of the doctors to lean forward in the witness box and tell off the defense attorney for bullying them, which would create a back-and-forth. ("If you would just treat me politely I'd be happy to answer your questions, but you're bullying me." "If you would just answer the question which I'm asking you and not go off into something else, I'd be fine.") It was noticeable that he didn't do this with his own witnesses, when they went off to wax poetic. Eventually the judge would break things up and admonish both sides.
(While I understood why the witnesses felt insulted, this was nonetheless one of the other times I wanted to call out, "Hey, y'know, the lawyer isn't here to be your buddy and have a nice chat about medicine. There is only one reason he's here, and it's to be a vigorous advocate for his client. Besides, as insulting as you think the question is, you don't have any idea why he's asking his questions. For all you know, it's to set a foundation for what he's going to ask a subsequent witness, or to relate it to testimony previously given before you took the stand. So, unless he's being so belligerent that it harms your status - at which point the opposing counsel will chime in, as this one did, 'Your Honor, counsel is bullying the witness,' just deal with it!")
The defense attorney also continually got angry - and would become scathing - whenever he'd ask a "yes/no" question and the defense witness would continue with an explanation, having to cut off the response with "Your Honor! Would you please again instruct the witness to just answer the question I asked and not give us another dissertation." (This would eventually get the opposing plaintiff counsel to respond, "I object, Your Honor, counsel is interrupting the witness and not allowing him to finish." Which would bring about from the defense, "Will Your Honor please instruct plaintiff counsel not to interrupt me when I'm making an objection.")
On the other hand, the plaintiff counsel was surprisingly pretty lax in comparison in giving leeway to witnesses for the defense. There were times where he'd ask his own "yes/no" questions, and the defense expert would go on with a long explanation, and this opposing counsel let them go on. Once, a defense witness answered a "yes/no" question and then even asked if he could explain more in detail. The plaintiff attorney shrugged, waved his hand and said, "Sure, go ahead."
This is not to suggest that the plaintiff attorney was all sweetness and light, he wasn't at all, and most definitely had his moments where his reactions stood out. More on that later. They were pronounced.
Through it all, the jurors were paying close attention and taking voluminous notes. Some more than others. (I noticed that the physician on the jury would be relentlessly writing. During a break, I said to him that he looked like he was taking notes during a consultation. He laughed and said, yeah, it was just force of habit.) I had a particularly funny juror sitting next to me. Not intentionally so, and not that she was making jokes, just that I could hear her whispering under her breath the whole trial. She took utterly meticulous notes, impressively so, and often when a question would be raised about the date or a fact, I could hear her quickly mutter, "August 12," before the court reporter could. Or "Cymbalta." Sometimes, she'd even render an opinion about a question being asked to the judge. Before he could answer, I'd hear, "Oh, no. Definitely not." It was a joy, and lovely having running commentary in my ear.
One of the oddest things of all is that, very surprisingly, it wasn't until near the very end of the trial that we even started to even have an idea what we were there to decide on. Really. In most cases, I assume that you know from the opening statements that you're deciding on guilt or innocence, in a criminal case. Or who improperly turned their car first at an intersection to cause a crash. Or if someone broke a promise. Or whatever is at issue. But in this trial...honestly, we had absolutely no idea what was exactly at stake to be decided. We knew that the defendant Cost Plus admitted fault, so that wasn't even an issue. And that's all we knew. We could also presume what was going on. It seemed like what we would have to decide was one of two things (or both) - first, whether the plaintiff actually had CRPS and if so, when it initially occurred, or second (the most likely decision), how much or little money she should get awarded. But even if the latter was the issue - we had zero idea what amount was being asked for by the plaintiff. None.
Finally, near the end, the day before oral arguments finished, the defense counsel asked a question that had the figure "5 million" in it. So, at least that part of the puzzle seemed to be answered. But there was still a great deal more that was uncertain. It was strange not knowing, though it also meant you listened to everything with a completely unfettered mind, without having $$$$-signs dancing in our heads. (And it was only until the very last day of arguments that the exact figure was given. It wasn't $5 million, but close -- $4,451,882.)
(To be clear, that was only the medical cost. There was no word yet on the "pain and suffering" matter. So, my guess at that point was the dollar sign would be going way up.)
Tomorrow: The defense has its say.
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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