The Jury, Episode 5: The cruel video deposition

This morning, the plaintiff's case rests. It's the defense's turn.

Supposedly, this will be the last session of testimony. It's a deposition, 75 minutes long, on the video screen. They've finally caught up with the state of the art: the video was shot in digital and produced on DVD, unlike the last pre-trial deposition I watched in 1997. The background is a light-colored chiaroscuro wash of greys, and a lone man in his mid-60s, obviously familiar with the deposition process, looks out from the screen with a bored eye.

The judge instructs us to treat this testimony as if it were coming from a live witness, to have the same open mind about the content of the testimony, and to maintain the same level of iquiry and skepticism we've had about all other witnesses. It is testimony, not evidence; we will not be allowed to take the DVD into the deliberation room.

I've been going to the courtroom in stocking feet, shoes off. Cool feet help me stay awake and think, plus it's on the advice of my physical therapist to do so. I have long legs and a tendency to kick the chair in front of me, and this helps me avoid that. I also cross my legs to the opposite of the guy to my left, so my foot and his shoe have a few Larry Craig moments.

The testimony comes from a Doctor McC. Since he's part of the defenses's rebuttal, Mr. Koenig goes first. He starts by listing off Doc McC's credential. He's a Doc of Orthopedic Surgery, now retired, although he still has an office and still sees patients once or twice a week, patients who would rather not go elsewhere for their care.

Koenig leads Doc McC through a series of questions to establish whether or not Doc L's treatment was reasonable. Doc McC doesn't think so. He's a bit of an absolutist, saying that all young people (and Miss T was 24 when the accident happened) heal fast and she should have been fine four to eight weeks after the accident. He keeps repeating this, that he can generalize that all patients should recover and there's no reason that Miss T's injuries would have persisted so long. He doesn't believe in soft tissue damage as a delibitating condition. He talks a lot about sclerotherapy being something he's never heard of. "The injection treatments that he used... I don't know any orthopedist who uses it... It's just foreign... It's just not done in our discipline."

Landry does a good job of taking Doc McC's position apart. First, he evicerates Doc McC by pointing out that Doc McC is an Independent Medical Examiner, a man who contracts out his medical expertise in retirement to defense attorneys for injury claims, although he claims he's only going to give an "independent, unbiased opinion." He gets $1000 per assessment, and he does four to eight of these a week, and he only does them two, maybe two and a half days each week, and he spends only two hours on each case, reviewing the documents and assessing the patient. Nice work if you can get it. Landry succeeds nicely in painting Doc McC as a hired gun who, by dint of his firm opinions, keeps getting rehired as an expert witness in these cases. Wonder what he gets extra for doing the deposition?

Doc McC agrees that osteopathic medicine may be different from orthopedic medicine, and that there may be courses of treatment osteopaths use that are unfamiliar to orthopedics, but then reiterates that he's never even heard of this therapy and says that as a doctor, if he wanted to give his patients the best possible care, he would have read up on and remembered every modality that contributes to a patient's recovery. Snap!

Landry gets Doc McC to give up more ground when he points out that Doc McC is listed as a physician at a local hospital with an internationally recognized pain treatment center. Surely he's aware of what they do. He blusters for a while, and says that some patients may have long-term pain, but the Pain Center doesn't take in all patients. There are those it turns away because the center can't help them, he says. He says he does that in his own practice. It's a kind of tough love, he says, to sometimes just kick the patient out into the world, to tell them that they just need to stand up and take care of themselves, and that he's not going to enable their complaining any longer. "I know plenty of other physicians who do that."

Koenig gets another turn and walks Doc McC back to the point he wants to make: the kind of damage Miss T experienced should not have lingered for more than two years, much less six. There might be something wrong with her, he doesn't know, but she has full range of motion, even according to Doc L's own charts, but the treatments after two years were excessive and not called for by any standard course of therapy.

I write "BS" in my notes a number of times next to things he says, about how all people heal the same way, or about how young people especially are all resilient and will heal soon enough, or how all the nerves in a part of her body would have to be occluded to create the kind of numbness and paralysis she describes the day of the accident.

Symptoms he says can't be found in the emergency room report. I make a note to read that report.

Doc McC makes a big deal about the difference between subjective and objective reports. Objective is things like range of motion and things you can see on a chart; subjective is the patient's report of pain. He doesn't put much stake in subjective reporting if it doesn't match his experience of objective improvement. Repeats his tough love mantra. Makes a point that it was unusual after six years for Doc L to not seek outside assessment of Miss T's condition and course of treatment.

Landy asks again about the pain clinic. "The pain clinic exists, but that doesn't validate the notion that some people shouldn't just learn to deal with their pain."

The tape ends.

I managed to stay awake for all of it, but one juror, the guy to my right, apparently found it dull and fell asleep several times during the video and I or the guy to his right kept having to nudge him awake.

I didn't think it was dull. I had other feelings. Those feelings will be revealed later.

The Jury, Episode 6: Closing Statements and Panic Attacks

Outside the court chambers, justice center rotunda, 3rd floor.

After our break, we reassemble for the final part of the trial: instructions to the jury, the closing statements, and the choosing of the alternate.

The judge seems much more awake this time. She reads the instructions to us with a firm and meaning-filled voice. She really means this stuff. Even though, technically, we can ignore everything she says about it not being our duty to decide the law of the case since Georgia v. Brailsford (1794), it's not really going to be an issue here, and I've already done my duty to the jury as the nullification proponent. Nothing here worth nullifying, really. It's just a sad injury claims case.

Two instructions catch all our eyes. One is that the defense is liable if we find that the Miss T is injured and, second, if those injuries can be, based upon a preponderance of the evidence, attributed to her injury by Frank. It moves the bar considerably: for some jurors, it will raise it. For others, lower it. My bar is twisty and multi-dimensional in ways an XKCD fan would appreciate.

Landry opens. He's stiff, keeping his arms crossed across his body as he makes his case. He leans back and talks slowly, like a dark-skinned Mt. Rushmore figurine. Miss T is injured, and Doc McC didn't do anything to discredit that statement. McC's credibility is at stake (Landry doesn't say so in some many words, but that's the message, loud and clear) when he disputes the purpose and function of a "world class pain clinic" at a hospital where he practices and lectures. He gives us some numbers, some explicit (about $20K in medical bills), some approximate ($6K-8K for future procedures), and no guidance at all about non-economic damages (pain and suffering). He says the evidence "is what it is."

Koenig closes. He has a rectangular head, and his haircut does him no benefit. Today he reminds me of a double-wide box of Rice Crispies with a mouth. It's a sleazy business, being a personal injury lawyer, and I don't know if I'd trust either of these men. Koenig agrees that his client is on the hook for the ER treatments, and for maybe, maybe the first two years of care. Nothing more. For pain and suffering, he says, $12-$20K is probably reasonable. That's half a year of her life that she'll be able to live and get the care she needs. She's employed full-time now as a paralegal.

He makes the case that she had a sudden decline two years after the accident for reasons not related to the accident. That the medical records show she's recovered full "range of motion", that her responses are "within normal limits," that she reports herself as being "fine" at times and "stressed" at others-- but those other times, the evidence shows, are job-related, or life-related, not due to her injuries, and that she's "clinically much improved." Koenig draws a timeline on paper, telling us his theory, that yes she was hurt, and yes his client takes some responsibility for paying for her injuries, but after six years both he and Miss T should be allowed to have a final number and get on with their lives. Koenig actually says, "I'm a laywer, not a doctor, but..." Koenig is animated. He uses his hands a lot to make points as he walks back and forth, an actor on his own stage, deep in his own episode of Law & Order.

I keep reminding myself that this is neither testimony nor evidence; it's simply the lawyers trying to draw our attention to the facts we have (or will have, when we're given the evidence itself) that each believes will sway us in the favor of his client, and away from that evidence or recollection (or notes) of testimony that disadvantages his client.

Landry rebuts: the job-stress story is "a smokescreen," and "a red herring." (Red Herring, "a narrative element intended to distract the reader from a more important event in the plot." I've always wondered exactly what it meant.) Miss T is injured. Frank should pay for the medical bills she would not have if it weren't for him, and she should also be compensated for the pain and suffering his negligence caused.

Good grief, he tries to place sclerotherapy as a technique that works for some people "like accupuncture." Uh huh. Yeah. Woo meter beeps plaintively. It thought we were done.

He closes. Everyone sits down. My chair makes a loud noise as I rearrange myself. It does that a lot. I seem to have gotten the squeaky seat.

The bailiff comes in with a wooden box, tumbles and turns it, and then comes the moment of truth. It is a lottery, and the Judge is our Shirley Jackson. She picks out a number. My heart is beating fast, I'm starting to sweat and experience vague somaethesia, a funny kind of fight or flight stress reaction completely unjustified by the actual content of the moment. She reads the number.

It's not me.

I'm staying. I get to be deliberate. A juror in the front row, to my left, is let go. The judge advises him to remain silent until a verdict is delivered, as he may be called if one of us falls suddenly ill.

We're released for lunch. I have to get out of there. I take the car, risking my parking space, and drive over to Cave Man Kitchens. The woman behind the counter said, "Oh, a juror! What's that like? I keep getting summoned but I never go." I tell her it's boring. That would probably be true, for her.

The Jury, Episode 7: The root of "deliberation" is "deliberate"

After lunch, we re-assemble back on the third floor and wait for the bailiff to lead us to the deliberations room. She arrives, all twelve of us assemble, and she leads us upstairs. As we're about to enter the jury area, a "controlled area," she asks "Are we all here?"

"All thirteen."

She laughs, but as it turns out there are thirteen of us. We have a straggler, a lost young man (very cute, with short black hair and a Cyrillic accent) who's just following us because we seem to know where we're going. We call out to the bailiff that we're not kidding. We have a thirteenth. We find out that he really wants to go to a courtroom on the third floor and the bailiff gets him sorted out.

We assemble in the jury room. Being an idiot, I toss a box of chocolate-covered espresso beans on the table and say "Okay, our first duty is to pick a presiding juror."

"Looks like you're it," says one of my fellow jurors. "You're the first one to speak up." There's some hemming and hawing. Don't these people realize I'm not fit to lead a dog? I guess I'm not really leading so much as "presiding", and I'm not about to try and impose Robert's Rules on these people.

And so we start.

The first order of business is to create a matrix on the whiteboard. There's a lot to consider. The verdict requires three categories: past economic damages, future economic damages, and non-economic damages.

The wrangling begins. There are lots of opinions, lots of facts. We pass around the evidence book and read aloud from the doctor's notes, trying to decipher his horrible handwriting. We read the full paramedic report.

The actual jury, now that I can see them all face to face, is quite a mix. We have one hispanic, two black men, one red-headed woman, and the rest is all white guys with ages from mid 20s to early 50's, with the economic status from lower to upper middle class. That's it. No wealthy people; no impoverished people. Everyone here has a job.

Ultimately, we have two line items: For each party, the past medical and lost wages, what each is asking for in future medical, and pain and suffering.

We agree that Miss T, and Koenig even says Frank agrees, that she should get compensation for her medical bills congruent with the ambulance, the ER, and maybe the first two years of treatment. We wrangle for a while, but there are two issues on the table. The first is: do we award her for medical treatment after the two year period? The second is harder, and takes a while. During her medical treatment, she almost never paid a bill even though she was employed or going to school full-time. Although she has nearly $12,000 in medical, she also has $5000 in interest and service charges. Should we cover that as well?

Someone floats a proposal that wins mindshare: the amount we award for current economic damages will cover her expenses to date in full. Close the books. The amount for future economic damages will be zero. Let me be clear: ten jurors (and we needed ten out of twelve to make the verdict stick) thought that was the correct amount. Not all of us agreed with the full amount in the past and none for the future.

But the majority wants to send a message: in the past six years her treatment has come from one guy, and it doesn't seem to be helping now as much as it has. Choose differently. The holdouts for a different ratio voted for what we choose. They agree that she should choose differently and get help from resources other than just Doc L, but they don't want to communicate that she should just give up and seek no further help. The conversation is quite loud, everyone gets a say, but finally we take a count.

The decision sticks. We're deliberate.

I write it down on the white board. We're done for the day.