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Although I’d have preferred, as an aspiring crime fiction writer, to have served in a criminal trial, the civil trial was fascinating in its own right.

The first thing that struck me was how, during voir dire, most people went to great pains to be honest. Almost everyone would have preferred not to be selected, if pre-voir dire chatter is any indication. Yet when presented with opportunities to say things that would likely have led to disqualification, most people went with the honest answer. For example, when the judge asked people to raise their hands if being selected would cause personal or professional hardships, many people did. However, most subsequently said that they could overcome those difficulties or that they could put those out of mind to focus on a trial. The easy way to escape service would have been to say, “No, I’ll be too worried about my child/job/employees to concentrate on the trial.”

Likewise, even though it would have been easier to claim a bias, most people said they could be impartial. Even a guy who had suffered a malpractice injury said, “I don’t think my experience would enter into my decision. If the plaintiff can’t prove it’s case, I could find for the defendant.”

And once we were on the jury, we all wanted to do a good job. We weren’t allowed to discuss the case until the judge charged us to deliver a verdict, but that didn’t stop us from talking about our attitude toward serving. At one time or another, all of us expressed the opinion that as much as we’d like to get this over with, we wouldn’t rush to a decision just to get it over with.

It was a good experience that gave me a deeper understanding of how hard civil lawsuits can be. There was an enormous amount of information for us to absorb, and we did it. An enormous amount of responsibility rested upon us, and we exercised it carefully and wisely. Not all trials are perfect, and few verdicts are easy to reach, but it is justice.

After a day of jury selection and three days of hearing the case, we were given our instructions at 9:30 on Friday morning. Our deliberation was deliberate but swift.

I was selected as foreperson pretty much by virtue of having sat at the head of the table, and having the biggest mouth. I asked if my fellow jurors wanted to do a secret ballot or simply go around the table and state which way we currently leaned, and they all agreed that a secret ballot was unnecessary. Initially, four of us already favored the defendant. The other two were on the fence.

We spent some time discussing the plaintiff’s case, and asked the two undecideds what evidence they felt that the rest of us had overlooked. Both were concerned about one item: although the defendant claimed he had checked the plaintiff’s pedal pulses before surgery, he had failed to chart the data. However, even if he hadn’t checked the pulses, that couldn’t have led to the complications that resulted in plaintiff’s injury. After we discussed that for about five minutes, both of the undecideds decided to find for the defendant.

We’d only been in the jury room for half an hour and nobody wanted to rush back with the verdict. We decided that we would each read the evidence files first and satisfy ourselves that there was nothing we had overlooked.

Forty-five minutes later, we were convinced. The doctor had done nothing wrong. Nor had he failed to do anything he should have done–at least, nothing that rose to the level of negligence that contributed to the injury. We took another vote. Again, unanimous for the defendant.

Finally, before I filled out the verdict form and signed it, I read it aloud. I turned to each juror in turn. “Are you 100% comfortable with finding for the defendant?” Each one answered yes. It seemed redundant, but I wanted to be sure that once we returned to the courtroom, no one would have second thoughts.

When each juror had answered in the affirmative, I filled out the form and signed it. I knocked on the door, showed the form to the bailiff, who handed it back to me.  We waited for a few minutes, then she brought us back in.

The reading of the verdict is a ritual much like the saying of the mass. In the mass, the priest transforms ordinary bread and wine into the literal body and blood of Christ. In the courtroom, the judge transforms the opinion of six ordinary citizens into the power of the state.

Judge: Who was selected as the foreperson?
Me: I was, your honor.
Judge: Have you reached a verdict?
Me: We have, your honor.
Judge: Please hand the verdict form to the bailiff.

The bailiff hands the verdict to the judge, who looks it over.

Judge: I find no errors on this verdict form. Will the clerk please publish the verdict?

And the clerk reads the verdict. Sighs of relief from the defendant and counsel. Glares of death from plaintiff.

Judge: Does either counsel wish to have the jury polled?
Plaintiff’s counsel: We would, your honor.

Judge: Mr. Falco, is this your verdict?
Me: Yes, it is.

And so on, down the line. No hesitations. The judge thanked us for our service, released us, and out we went.

The plaintiff, after undergoing surgery to correct hammertoes and remove two bunions on her right foot, suffered complications that led to the amputation of a small portion of her third toe and also now experiences a constant cold sensation in most of her foot. She alleged that malpractice on the part of her doctor was to blame for these complications.

Her lawyer put on a case that relied on:

• Misrepresentation of what witnesses were saying. For example, there was much discussion of an infection on the top of plaintiff’s foot. Plaintiff’s lawyer then claimed that this was proof of infection on the toe that ultimately was amputated, and that when the doctor said there was no infection on the toe, he was contradicting himself.
• Obfuscation of terminology. For example, plaintiff’s lawyer said that one of the doctors in the case claimed that plaintiff had suffered no “permanent injury.” However, what the doctor had said was that she had suffered no “permanent disability” as defined for obtaining a disabled parking pass and that checking the box for permanent disability on the application was an error on his part.
• Outright appeals to sympathy. Yes, it is sad that plaintiff lost part of her toe and had other complications from surgery. I do feel bad for her. But that doesn’t prove negligence.

Also, the plaintiff’s expert witness was a podiatric surgeon of a different kind than the defendant (he does minimally invasive surgery, the defendant does more complicated surgery that can’t be done via minimally invasive procedures). One highlight of his video deposition was an argument about how many bones were in the foot–there are 28. He had said in a deposition for another case that there were 34, and, when defendant’s lawyer brought this up, the doctor argued that 34 could be correct because “every person is different.” He also at one point said that 43 was the correct number. I wouldn’t allow this guy to put a Band-Aid on me, never mind perform any kind of surgery.

The defendant’s lawyer was obnoxious and condescending, but none of us held that against his client. He put on a defense that was made largely unnecessary by the inadequacy of plaintiff’s case. While the defendant has no burden of proof, defendant’s lawyer proved that:

• Defendant did everything that he should have done except chart one piece of data.
• The data that he failed to chart was immaterial to the complications that ensued.
• Defendant did nothing that he shouldn’t have done.

Defendant’s employer at the time of the surgery (defendant has since moved to Georgia) was also a party to the suit, but the employer’s lawyer had little to say that wasn’t covered by defendant’s lawyer.

As you’ve no doubt guessed by now, we found for the defendant. I’ll talk about that in my next post.

Two email submissions of “Bringing up Bobby” went out tonight. I’ll send a snail-mail submission to a third market tomorrow. I’d thought I had five possible markets but I had to drop two from my list. One hasn’t updated its web site since September, which makes me wonder if it’s still publishing. The other states that it is looking for “dark” fantasy, which does not remotely describe this story. Don’t know how I missed that the first time I looked at the submission guidelines.

If all three of these markets pass, I’ll have to start looking at markets that specify “no simultaneous submissions.” That’s frustrating, of course, since so many markets take forever to respond, but if that’s what it takes, c’est la vie.

The last time I’d been summoned to jury duty, in Tampa, I’d waited until almost 3:00 with nothing but a copy of On the Road to entertain myself with. This time, I brought my laptop and briefcase. Naturally, I was called for the first voir dire of the day.

They herded about 30 of us into the courtroom. We were told that this case was a medical malpractice suit that would last until about Thursday, and possibly into Friday. The judge asked some general questions and then turned over questioning to plaintiff’s counsel. His partner performed the bulk of the proceedings.

I was baffled at some of the questions he asked. They seemed inane–to a mechanic, “What kind of cars do you prefer to work on?” and to a pediatric nurse, “Do you like children?” On my questionnaire, I had listed playing guitar as one of my hobbies. He asked if I were a professional guitarist. Uh… no, that’s why it’s under “hobbies.”

Later, he asked several general questions.

• Do any of you have a bias against doctors? Several people.
• Do any of you have a bias against lawyers? An overlapping set of roughly the same number of people.
• Have any of you ever been party to a lawsuit? Many hands.
• Have any of you ever been party to a medical malpractice lawsuit? Most of those who raised their hands to the previous question.
• Have any of you had a family member sue for malpractice? Half a dozen hands.
• Have any of you had a family member experience malpractice but not sue? My hand went up.

I had to explain about a mistake that was made during a surgery for my mother, and why I thought she hadn’t sued. I mentioned a few reasons, and said something to the effect that “It wasn’t a mistake worth someone losing their license over.”

He followed up with, “Does anyone here think that this case involves the loss of a medical license?”

Defense counsel leaped to his feet with an objection. I thought, Well, I’m out of here.

Voir dire lasted until almost 3:00, and then they sent us out while they decided who they wanted. There were about ten people who I suspected were automatic rejects, mostly for hardship. Another three or four were nurses; the plaintiff was herself a nurse, so I figured they’d go. One guy was so stupid it was amazing he could find both pant legs when he got dressed in the morning.

Could have gone either way with him.

Around 3:30, they called us back in, explained (again) how important jury duty was, thanked us (again) for sitting through voir dire, and started calling jurors.

“Juror number two, Mr. Falco.” I looked around. There’s another Mr. Falco here? The number on my juror summons was 1146. But the number referred to where we were seated. They picked six more jurors, told us that it was too late in the day to start the trial, charged us not to talk about any aspect of the case, and sent us home.

I’ll talk about the trial in my next post.