An experienced lawyer’s view from the jury box in a medical malpractice case

Mary came to work for me soon after I became a Magistrate Judge in 1987. An undergraduate degree from New York in German, a Master’s degree from Notre Dame in linguistics, and a career running Creighton University’s “English as a Second Language” program for medical students and others, set her far apart from the other applicants. The fact that she was also a senior editor of the Creighton Law Review was important too.

I hired Mary, and, of course, after several years the Chief Judge came calling. Mary “went up stairs” for several years as a career clerk to the Chief. Then, stretching herself, she became a line federal public defender and appellate specialist.  After that, back to yet another Chief Judge as a career law clerk. She is semi-retired now.

Anyway, Mary recently sat as a juror in a med/mal case. I asked her to write about her experience.  She graciously agreed, and what follows is her fascinating account:

Our jury panel proceeded for voir dire to Nebraska State District Court Judge Russell Bowie’s courtroom. This was delightful as I was acquainted with Judge Bowie from his lawyering days. I was questioned thoroughly. As a lawyer I probably made the cut because since 1994 little of my work had involved civil law.

The jury included many women and few minorities. My favorite juror friend for the week had a distinctive white stripe in her dark hair. When not in court we were either in the jury room or allowed to roam. I was struck by the frugality of the jury facilities compared to the plush surroundings in federal court. Our sole amenity was a water cooler.

The case was sad. Plaintiffs, husband and wife, sued their Ob/Gyn physician claiming that he did not advise them of potential complications with the woman’s pregnancy due to her septate uterus or of surgical procedures to correct the problem prior to pregnancy. The child born to them was then about ten years old, in a wheelchair, and suffering from physical and mental abnormalities. He was in court briefly. Clearly, in this case there would not be any “winners.”

It was fascinating to watch the attorneys as a juror. I found the plaintiffs’ attorney to be a nice guy but stiff, nervous, and bland. The defense attorney is a lawyer by day and actor by night. His delivery was mesmerizing.

Only one witness still stands out in my mind—the plaintiffs’ so-called expert witness, an Ob/Gyn physician from Glenwood, Iowa, 25 miles from Omaha. The man was creepy. He testified that he had lost privileges at the Glenwood, Iowa hospital for some unstated reason, and if a Glenwood patient had to deliver a baby he would meet them at the Creighton University hospital, the only hospital where he enjoyed privileges.

On Thursday afternoon the parties rested and closing arguments were held. We began deliberating. We voted for a jury foreperson, and two others were enthusiastic about assuming the role. I was not, as I wanted to blend in with the group.

We began by taking a vote. We were 50/50 when it was time to go for the evening. On Friday morning one juror said he had been physically ill the night before thinking about the responsibility we held. We discussed the sadness of the case and the doctor’s reputation being at stake. Our early Friday vote showed no change. So we talked about the evidence and the witnesses. We discussed the creepy doctor. At one point some jurors wanted to tell the Judge we were deadlocked, but we decided that in doing so we would not be doing our job. Periodically we took votes, and gradually the scale began to tip in the doctor’s favor.

A turning point came when we saw in a medical record that the wife had previously been pregnant. This was significant because we thought that indicated that her septate uterus and its complications were no surprise. This earlier pregnancy was never referred to in court. We wondered why and felt that this important matter had been deliberately hidden from us. Did the husband not know of the prior pregnancy? Was there a protective order that prohibited it from being raised? At any rate, once we found this one tidbit buried in a stack of medical records the vote soon became unanimous in favor of the doctor.

So often a verdict seems to come at the end of the day, end of the week, or right before lunch. In our case the Judge’s bailiff had stuck her head in late on Friday morning and asked if we anticipated reaching a verdict before or after lunch, because if we knew it would be after the noon hour we would be provided a pizza lunch. We weren’t sure at that point when we would be done, so in came the pizza. They must have experience with this as a method to encourage consensus, as over our pizza we made our final decision—unanimous in favor of the doctor.

We jurors talked about how surprisingly exhausting it was to do our job. It was hard to sit all day, all week, and go home tired just from paying attention and endless sitting. Many used the lunch hour to walk or go to lunch. I walked a block to my office and worked. I felt like every other part of my life had to be on hold.

After the trial I received phone calls from both lawyers asking about their performance. I gushed to the defense attorney about his stellar performance, skillful questioning, and other attributes. He very sincerely thanked me on behalf of his client. I saw him about a year later, and he did the same when I told him I had been on that jury.

My conversation with the plaintiffs’ attorney was difficult though pleasant. He started by telling me to be completely honest. So I was. I told him his expert was creepy and inexperienced in septate uteruses, and that one should not put on a creepy Ob/Gyn in front of a largely female jury. When I was done he asked me, “So, was there anything about my performance that you liked?” I came up with something. He then confessed that he had never had a medical malpractice case and that he was a bankruptcy lawyer who had taken the case as a favor to a friend who was related to the plaintiffs.

I never saw my fellow jurors again, and I would not recognize any of them on the street except for the woman with the white stripe in her hair only if she still has the stripe. Our lives were intertwined for one intense week, we did our job, and then life outside the jury room went on separately for all of us. We all took it seriously, and there were no whiners or complainers. We were all undoubtedly richer for the experience that we all appreciated.

Thank you, Mary, for your insights. I miss you!


A long time ago I had the privilege of presiding over the naturalization ceremony where Mary's little boy in red suspenders, a bow tie and waving an American flag became a citizen. He is all grown up now. The river of life  . . .

A long time ago I had the privilege of presiding over the naturalization ceremony where Mary’s little boy in red suspenders, a bow tie and waving an American flag became a citizen. He is all grown up now. The river of life . . .


Juror trauma

Much of this blog is a never-ending whine about what a tough job federal judges and federal trial lawyers perform. More particularly, we frequently discuss the death of jury trials in the federal courts and lament that “our way of life” is going the way of the mediator or the plea bargain. Cue the choir!

If we are honest, we must admit that we spend almost no time thinking about who makes the jury trial system work–jurors. They get hailed into court on pain of a jail sentence if they refuse. Indeed, I have held very public hearings threatening recalcitrant jurors who failed to show up with both a fine and a jail sentence until they publicly apologized for telling us to pound sand. In federal court, they can be required to travel hundreds of miles and sometimes through dangerously inclement weather. Sometimes, we also treat them like cattle and shuffle them around just like you would expect from some terrible airline that just cancelled a flight. We pay them (in the federal system) $40 a day plus minimal subsistence.  Their employers can’t fire them for jury service, but there is no federal law requiring employers to make up the pay difference. And all that is just the beginning.

I want you to imagine sitting through a trial as a juror. Derived from one of my cases, the basic facts are these:

A white street punk, with a pretty face, who was followed around by two young teenage boys (about 13), made a deal for $500 dollars worth of grass. A black guy and a native guy, who were both savvy cons, agreed to sell the dope to the punk with the pretty face but they wanted their money first. Money paid, but no dope forthcoming. Punk, with sweet face, returns to the apartment, and executes the black guy and the native guy with a rifle and with the clean-up assistance of the two young teenagers. Blood all over. Bullets in the belly and head as the victims each tried to crawl away. To make a point, the white street punk, with the pretty face, blows off the balls of one of his victims. That perfectly punctuates the encounter.

It is summer. The bodies are left to swelter in the small apartment for two weeks. When it is finally entered, the stench is overpowering and there are literally hundreds of thousands of flies that grew from the maggots that begin to invade the bodies shortly after death. The autopsy photos look like something a deranged person would print from a mythical snuff video. All of the foregoing is shown in vivid color on big photos blown up and placed on poster board so no juror will miss any detail. The only saving grace is that the feds took the death penalty off the table at the last moment.

Deb Gilg, a really good gal and our United States Attorney, has written a wonderful piece about the impact of trials on jurors. It is attached here: juror.stress.gilg. I urge you to read it, and if you truly care about the vaunted jury trial right, think about how all of us could help jurors live through the ordeal of a jury trial whether it be civil or criminal.

By the way, here are two things I do now to try to lessen jury trauma in both civil and criminal cases:

  • I spend an hour with the prospective panel before jury selection. I have described my orientation in a previous detailed post, but it essentially turns upon a physical orientation to the courtroom and a relaxed and informal give and take with the jurors about what and when they will see particular things during the trial and why they are seeing such things. Jurors have repeatedly told me that this orientation relaxed them and made them “feel safe.”
  • Following every jury trial for the last 25 years, and after I have officially excused the jurors, I return, with my courtroom deputy, to the jury room.  By this time, the courtroom deputy has become very close with the jurors and they see her as a extraordinarily helpful and non-threatening ally. I knock and walk in, and then I physically shake hands with each and every juror and I thank them for their service. I tell them that they can ask me any question they want, and that I will give them straight and honest answers if can. And, that is exactly what I do. If they ask me whether they did the right thing, most of the time, I say “yes” because most of the time I agree with them. I will also stress that I would not have given them the case unless their verdict (whatever it was) could fairly be viewed as both proper and correct. If they ask about sentencing in a criminal case, I will honestly describe the process and estimate the probable sentence. If they have concerns for their safety, I will deal in very practical terms with their concerns and I have sometimes brought in the room US Marshals to help me explain specific procedures and tactics. In short, I will spend as much time (sometimes well over an hour) answering questions and reassuring the jurors that they have nothing to worry about, that they have done a service of incalculable value, and that they should be very proud of themselves.  And, I end by telling them not to have second thoughts.

Deb Gilg has done a real service reminding us of the emotional needs of jurors. Federal trial judges should take her reminder to heart.


 Subsequent clarification:

I always excuse the jurors before I talk to them. They are free to talk to me or not. I am also circumspect in how exactly I answer the “did we do the right thing” question. To be perfectly clear, I never prejudge post verdict motions and never commit myself on such matters when I debrief the jury. Moreover, I never inquire into, and do not discuss, their internal deliberations.

May 8, 2014 at 3:19 PM



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