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Illinois Bar Journal

The Magazine of Illinois Lawyers

June 2010Volume 98Number 6Page 296

June 2010 Illinois Bar Journal Cover Image

Juries / Civil Practice

Juror Number 10, Attorney at Law

By
Phillip H. Hamilton

An ISBA-member lawyer tells the day-by-day story of his jury service and explains how it changed - forever - his perspective on trial practice.

The right of trial by jury as heretofore enjoyed shall remain inviolate.
IL Const Art I, § 13

In September 2009, I had the privilege of serving as a juror in a civil case in Madison County. The trial, which lasted six days, was worth a hundred trial advocacy seminars. What follows is a synopsis of the events from the receipt of summons to jury deliberations, including my observations about the proceedings and how the experience changed my view of trial practice.

The summons

My first reaction upon getting the summons was that I was interested but too busy. What happens if it's a long trial? I know it will last at least one day, even if I'm not picked. I can leave a Monday open, but not the whole week. I schedule several appointments anyway.

Day One

I report at 9 a.m. with about 200 people. We're herded into a courtroom on the third floor. I look around. I don't know any of these 200 people, but then there are more than 140,000 registered voters in the county. Many are intently reading a flyer from the county that explains a little about jury service and identifies the judges and some of the court staff.

We then watch a video introducing us to jury service. It is fairly recent, informative, and not too long. I wore a suit and tie like I do any time I go to court. I felt funny about going to the courthouse in more casual attire. I wonder if what I am wearing will affect voir dire.

After our introduction, we go from the third floor to a smallish room in the basement where jurors wait to find out if they'll be selected for a venire. The room is hot.

I bring a pile of work, thinking I can get something done. I have a whole briefcase with me. I'm not being disturbed and the phone isn't ringing. This is great, I think.

But I hear jurors around me talking. They're worried about losing pay and scheduling complications. They're hoping to be excused. I didn't hear anyone say they wanted to sit on a jury.

Eventually, the jury administrator calls out a list of 30 or so people who leave the room and go to a courtroom for voir dire. Two more panels are called, and about 30 people file off each time. The room is becoming very hot. People want to leave and be excused from jury service. They call one more panel, and at about 11:45 a.m. they send the rest of us to lunch and ask us to be back at 1 p.m. I have now finished all the work I brought with me.

With so many people called for jury service, I assume a number of trials must be going forward. It's mid-afternoon and a number of us are still waiting. I've completed the New York Times crossword puzzle (easy on Mondays), the St. Louis Post-Dispatch crossword puzzle, and the Jumble, all apparently without errors. The waiting is interminable.

Then they announce a fifth panel of jurors. To my mild surprise, I hear my name called and go to the courtroom with the others.

We take our seats for voir dire in the courtroom. The plaintiff's lawyer explains a little about the case. The jurors are becoming more interested. We're asked typical questions about whether we can serve impartially. Having conducted a few jury trials, I'm surprised at the number of jurors who say they could never be impartial towards the plaintiff in the case. I assume at this point there will be many strikes for cause. I'm sitting in about the twenty-sixth position in a panel of 32 people.

After a couple of hours, voir dire is complete and we file outside to wait for selection. I haven't really gotten to know other jurors yet, but I do talk to one fellow who, ironically, seems to recognize me from a couple of years ago when I was struck from a panel. Other jurors seem more than happy to leave and to hope they won't be picked. Many have scheduling conflicts. They express a generally negative view of the process because of the delay.

After a relatively short strike, the bailiff comes out to announce the names of the jurors. I'm surprised to find I've been selected as juror number 10 of 13, one of whom will serve as an alternate. I thought I would be struck.

I'm happy I'm not juror number 13 because I assume she doesn't know she won't take an active role unless another juror is excused. If I'm going to sit through the trial, I don't want to be excused at the end and not take part. I feel a little sorry for her. We file into the courtroom and take the jurors' oath. It's been a long day.

Day Two

During the course of the trial, do not discuss this case with anyone - not even your own families or friends, and also not even among yourselves - until at the end of the trial when you have retired to the jury room to deliberate on your verdict.
Cautionary and General Opening Remarks To Jury-Civil

I can't speak with other jurors during the trial about the case. I wonder what they think about the process, the attorneys, the claims of the parties. Our discussions are informal and we don't really know each other's names.

I try to talk to each juror during the day to learn how they feel, nothing related to the case, just how their day is going. It's very interesting to meet them. What kind of people are they? What are their interests?

You find out their kids play soccer. One of mine does, too. You find out one guy likes to fish. You learn this is a topic of universal interest. Everybody either fishes, knows someone who does, or just likes to eat fish.

You find out which jurors are married, have kids, are engaged. During the numerous lengthy breaks and during lunch I try to meet all of the jurors. But still we are strangers, brought together for a while.

You are the judges of the facts in this case.
Cautionary and General Opening Remarks To Jury-Civil

The opening statements are too long. Thirty minutes per attorney would have been plenty.

The plaintiff begins a lengthy exami nation of an adverse witness. I completely understand what the witness has to say in about an hour. Direct and cross for each witness could have been completed in about an hour and a half.

About every hour and 15 minutes or so, we needed to stretch our legs, get a drink, go to the bathroom. But the break, scheduled to last 15 minutes, invariably goes for much longer. Thirty minutes. Forty-five minutes.

When we break for lunch, the court graciously allows us about an hour and a half. The jurors pretty much all agree it could be shorter. Many of us eat in the cafeteria near the courthouse, which doesn't take that long. I sense the other jurors are weary with the slow pace. We've been at this two days and have heard opening statements, one witness, and part of a second witness.

Day Three

You cannot begin to consider what your verdict is going to be until you have heard all of the evidence.
Cautionary and General Remarks To Jury-Civil

We've seen a video tape of the accident, a slip and fall on what is clearly a wet floor that isn't properly marked. The at torneys belabor the obvious: the floor is wet and the plaintiff has slipped and sustained a serious knee injury.

We're looking at other aspects of the evidence. On the video, all you see is the plaintiff slipping quickly on the floor. We can't be sure exactly what happens. The defendant took pictures of the scene after the plaintiff fell. It is apparent that the wet floor was not properly marked by the defendant - there was no sign on each end of the mopped area. These obvious points are driven home over and over.

Surprisingly, a picture of the plaintiff on the floor shows that his head is two or three feet from a wet-floor warning sign. The testimony is that this sign is next to a cooler where you could remove a single beverage. The wet floor sign was there because moisture from the cooler would cause a water hazard.

There's another wet floor sign at the side entrance of the store from which the plaintiff entered. The testimony is that they left the sign up all the time. I'm forming an impression, based on having been in many convenience stores, that there's always something you could slip on in this store.

The plaintiff's attorney drives home the point that the defendant did not follow its training video and has been lax in its safety policy. But I'm not convinced this store has completely ignored customer safety. Why would it want its customers to get hurt by slipping on a floor?

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them.
IPI 1.01, Preliminary Cautionary Instructions

We hear testimony from the floor clerk who was there on the day of the injury. She is obviously just doing her job and following the instructions of the people she works for, with no apparent ax to grind. She seems basically truthful but confused in some of the details of her story.

In evaluating the credibility of a witness you may consider that witness' ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.
IPI 1.01, Preliminary Cautionary Instructions

We then hear testimony from one of the corporate officers. He seems credible to me, but the plaintiff is able to impeach him based on some of his responses in discovery. The plaintiff takes a fairly aggressive approach with this witness. I think to myself that working over a witness probably doesn't play well with jurors. They're sympathetic to witnesses, not lawyers.

I tend to believe the defendant's corporate officer, but it also seems that the defendant is lax in its safety policy and not doing enough to prevent accidents.

For example, there are only two warning signs in the store. They weren't placed in the middle of the floor while it was being mopped because it constituted a tripping hazard. While that seems logical to a point, it doesn't explain why they don't use the waist-high "wet floor" signs shown in their training video.

The plaintiff is building a case for punitive damages. I am thinking that's what this trial is about. I don't handle personal injury cases, but I know the trial judge has to make a finding whether the jurors should even get an instruction about punitive damages.

I think about cases in which I was successful in getting punitive damages. Each one involved willfulness by the defendant tantamount to fraud. I wonder how the jurors will view punitive damages in a negligence case.

The testimony continues between breaks and lots of waiting. We're told to come to court at 9 a.m. Then we wait until 10:30 before hearing any testimony. I have some idea what must be going on - motions and the like -but I assume other jurors don't. We hear an hour or so of testimony, then are told to go to lunch for an hour and a half. I'm becoming concerned the trial won't be completed in the five days they estimated during voir dire.

Day Four

We hear the plaintiff testify about his injuries. He seems credible, but his claims relative to punitive damages seem out of proportion to what happened. I'm satisfied that he suffered considerable pain from his injury. It was all caught on the tape, both video and audio.

He testifies about how the accident took place and how much pain he went through from the accident and recovery. But he does not walk with a limp or gait. He takes the elevator every day to the second floor. I wonder whether he really can't climb the steps.

When he testifies that his golf handicap was a 15 and has increased to 18, I'm thinking, hey, he can still play golf. Based on what I know, 18 is a decent handicap. He also testifies that he cannot ride a bike or go on long hikes. He says he is unable to stoop down to pick up things.

Then the plaintiff's wife testifies as to her consortium claim. I'm thinking she still has her husband, that he's not a paraplegic and didn't suffer traumatic brain injury. Perhaps they can't do all the activities they did in the past, but I'm skeptical of her claim.

We then hear from the plaintiff's physician and see pictures of the operation. I'm satisfied at this point that the plaintiff underwent a serious medical procedure to repair his knee. I find the physician credible.

During the trial some of the evidence is presented on a screen, while other exhibits are simply mentioned by the witness. In my trials I've tried to project the exhibits onto an overhead screen. I'm now more convinced this is the way to proceed. Jurors want to see exhibits, and they can't read an 8 1/2 x 11 inch document from across the courtroom.

Another thing: we jurors hate sidebars. During the trial, the lawyers called numerous sidebar conferences from which we're excluded. I vow never to call another sidebar conference in a jury trial. Either say it in the presence of the jury or wait until a break.

Day Five

The plaintiff winds up, and we then hear a shorter line of questioning from the defendant. I listen intently to the defendant's case, but I do not hear anything that constitutes new ground. I am again struck by the credibility of the corporate officer. I'm not convinced the company would consciously fail to take precautions.

For example, there is testimony that after the accident the convenience store did business as usual. I think there's almost no way they could shut down. There's no simple way to stop the flow of business.

It is Friday and I had assumed the court would finish up with closing statements, instruct the jurors, and tell us to deliberate into the evening. Some of the jurors, however, are concerned about going past 5 p.m., preferring to do a short day and finish Monday. They tell the bailiff. We're there for about five hours and hear maybe an hour and a half of evidence.

I reflect on a sense I have. I've tried cases for plaintiff and defendant, both bench and jury trials. I've served as an arbitrator. I'm familiar with the stress on lawyers and parties.

But I experience a different emotion I didn't expect. I can only describe it as "juror stress." How long will the trial last? What are the other jurors thinking? Will we reach the right result? Can I put aside my knowledge of the law and follow the instructions?

I stepped on the scale that morning. When trying a case I typically lose two pounds per day because of the exertion of trial, not eating as much, and lower water intake. I am down five pounds since Monday sitting as a juror (not that it hurt me).

Day Six

It's Monday. We come back to court for a last day of trial. Although we arrive at 9 a.m., we're again waiting outside the court to begin. The closing statements are far longer than necessary to summarize the evidence. Thirty minutes per attorney would have been ample. As I think back on the case, the entire process could have been completed in four days. I'm convinced that jurors understand the evidence and that you can't move it along too quickly.

The law regarding this case is contained in the instructions I will give to you. You must consider the Court's instructions as a whole; not picking out some instructions and disregarding others.
IPI 1.01, Preliminary Cautionary Instructions

The court reads the instructions, which thankfully are shorter than some I've had in my cases. We're told not to consider the defendant's liability, and that the amount of medical expense is reasonable and accurate. We're told to consider damages for purposes of negligence and consortium and whether to impose punitive damages (and if so, how much). We file into the jury deliberation room and breathe a collective sigh of relief that the trial is over and we can talk about the case.

When you retire to the jury room you will first select a foreperson.
IPI B45.01

The jurors seem to take their job seriously, and I'm waiting with bated breath to see what their observations were about the trial and whether they're similar to mine. One of the jurors suggests that I be foreperson. I decline because I don't want to control the process. We nominate Juror No. 4, who resolutely gathers the jury instructions and begins directing us through the decision-making process.

The court has determined that the defendant is negligent. This is not an issue you will need to decide.
IPI 3.06, Directed Finding

We have been directed to consider liability in favor of the plaintiff. We honor this direction, but several jurors express concern about it. The plaintiff fell within feet of a wet-floor sign. On balance, though, there seems to be a consensus in favor of liability for negligence.

Your verdict must be unanimous.
IPI B45.01

The foreperson poses an issue to us and then canvasses a response from each juror. Some say more than others, but everyone is involved.

For example, we're directed to consider the plaintiff's future medical expense. The jurors seem convinced the plaintiff will need a knee replacement. We also think he'll need some injections discussed during the trial.

Some jurors estimate in the $50,000 range for future medical expenses, others at around $150,000. We're well short of the plaintiff's minimum demand of $200,000. We settle on $100,000.

We have a longer discussion about pain and suffering. Everyone is convinced that the plaintiff suffered a lot of pain, is experiencing it now, and will ex perience it in the future. The plaintiff's minimum demand is $200,000, but the range for the jurors is somewhere between $100,000 and $200,000. After additional discussion we settle on about $150,000.

We consider loss of normal life, and we're skeptical. We're particularly unim-pressed with the testimony about the golf handicap. The single most helpful factor to the plaintiff is that he can't bend down to pick things up. We agree it's a signifi cant limitation to have for the rest of your life.

But we doubt that he can't ride a bike. After all, some people without legs can ski. Maybe he could modify a bike and ride it using only one leg.

There's a discussion about credibility of witnesses. Jurors agree that each witness had some credibility problems but they don't think about it like a lawyer does. Which witnesses do we believe, and how much?

I ask jurors what they think about the presentation by the lawyers. They seem reluctant to say much about it, so I let it drop.

We're far apart on damages for loss of normal life. The range is $25,000 to $200,000. We table the discussion and go to the consortium claim of plaintiff's wife. No one seems convinced she incurred damages as a result of her husband's condition. There's a consensus, though, that she deserves something for caring for her husband and for the loss of normal life, so we agree on $10,000 and $5,000, respectively.

When I use the expression "willful and wanton conduct" I mean a course of action which shows an utter indifference to or conscious disregard for safety.
IPI 14.01, Willful and Wanton Conduct -
Definition

 

If you find that defendant's conduct was willful and wanton…you may, in addition to any other damages…award an amount which will serve to punish the defendant and to deter the defendant and others from similar conduct.
IPI 35.01, Punitive/Exemplary Damages -
Willful and Wanton Conduct

Several jurors have no interest in asserting punitive damages against the defendant. I'm cautious in my statements, because I don't want to overly influence them.

Each juror explains whether and why he or she thinks punitive damages are appropriate. Several say no, while one or two go as high as $100,000. None are even close to the plaintiff's claim of $2 million. The injury does not warrant substantial damages, nor do we think the defendant should be punished to that extent.

We do not discuss the defendant's financial statements that apparently show several million dollars in assets. We also do not speculate about whether the plaintiffs are well off. We focus on whether the defendant showed a conscious disregard for the safety of the plaintiff, reading that language of the instructions several times.

Several jurors are adamant that the plaintiff has not shown a conscious disregard for safety by the defendant. I suggest that the defendant really did not have a safety program. Some amount should be asserted against the defendant to send it a message that it should make some changes in its safety program.

After more discussion, we agree on a figure of $50,000 in punitive damages. But several jurors ask why the plaintiff should get this money.

We turn back to the loss of normal life. The jurors describe an injury that would prevent them from doing the thing they like most. After much debate, we agree to $50,000 for loss of normal life.

Having agreed on what the verdict will be, some jurors continue to question the amount of damages. We are close to $400,000 for a knee injury, and it seems like a lot of money. But this becomes our verdict and everybody signs it. We file into the courtroom, the bailiff takes the verdict form from the foreperson and the judge reads the verdict. We're thanked for our service, and we depart the courtroom.

Lessons learned

On behalf of the Judges of our Courts, the Lawyers who practice in those courts, and the taxpayers and citizens who use the courts, we are proud to join in this expression of our deep appreciation to those who have been called from their accustomed pursuits to perform the task of juror and, thereby, make a personal contribution to the attainment of the ideal of equal justice for all.
Certificate of Jury Service and Commendation

Back home after six days of jury service, I reflect on things I've done right and wrong in jury trials. I vow not to be abrasive with witnesses, to always be cordial with the court and opposing counsel.

The jurors agreed that the process took too long, including the presentation of evidence. Shorter presentations would have been more persuasive. Jurors get it - I'm convinced of this. Move things along as quickly as possible. Keep statements short. Don't belabor points. Don't drag out an already laborious process.

No sidebars. Use projectors to display evidence.

I reflect on the financial cost to jurors. I effectively lost six days of work, though I worked in the evenings and through the weekend. I sympathize with the other jurors who lost those six days and who may have lost pay.

The statutory $10 per day plus mileage for jurors is woefully inadequate. When the plaintiff can afford a $1,500 an hour expert, a fact discussed at length during the deliberations, and both sides can retain top-notch lawyers, the parties can afford to pay more for jury fees. Anything less than $100 per day creates a negative perception.

Our sincerest thanks are sent to you for a job well done.
Certificate of Jury Service Commendation ~

Phillip H. Hamilton is a shareholder in the firm of Farrell, Hamilton & Julian, PC, and his practice centers on business and tax controversies as a litigator and an arbitrator.


Lessons learned by a lawyer-juror

  • Don't be abrasive with witnesses, other lawyers, or the court. Jurors will sympathize with them, not you.
  • Don't use sidebars. Say it in court or wait till a break. Don't make jurors feel left out.
  • Use projectors to display evidence. Jurors want to see what's being talked about.
  • Don't drag out an already laborious process. Move things along as quickly as possible. Keep statements, presentations, examinations, and the like short. You'll be more persuasive.

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