It’s one of those cases that causes those of us who represent consumers to shake our heads. An affluent woman who has been bleaching her hair since childhood sues an upscale salon for botched hair treatment. She seeks $50,000 in humiliation damages, plus substantial out-of-pocket expenses for hair treatment and childcare.
Deliberating for just an hour, the jury found against her by a margin of 11-1. That’s about as quick and complete a rejection as you see in a jury trial case.
The lawyer representing the dissatisfied salon patron, Leta Gorman, is a shareholder at Bullivant Houser, a large west-coast law firm. She typically defends manufacturers in injury cases. According to the news account, the lawyer defending the salon argued that this was a “frivolous lawsuit.”
Oddball cases get twisted, and I imagine this one will show up in the echo chamber of distortion. What the Chamber of Commerce and others who decry lawsuit abuse miss is this: most damage lawsuits are filed by businesses. Here, an affluent and sophisticated consumer seeking beauty in a bottle sued when things went bad. It’s fine for the Chamber of Commerce to complain, but it ought to be truthful about how only the wealthy can afford the luxury of litigation of thin cases.
For those of us who represent injured people, this is one of those eye rollers. It’s an eye roller because cases for people with profound injuries have to wait in line behind luxury litigators. It’s an eye roller because our judicial system–which is strained and underfunded–has to deal with this type of claim. And it’s an eye roller because it gives squawk box material to those who can’t discern between claims for those wrongfully injured and those who litigate simply because they can afford to do so.
For all the heat and the noise, the true story is about quiet wisdom. That wisdom came from the jury. One of the jurors, Del Shaw, was quoted in The Oregonian. His simple assessment is the real story: “We took a look at the facts and didn’t feel the facts supported the claim.” That left me smiling because it simply shows that the jury considered the evidence and made a decision based upon the merits.
In that way, the case proves what those of us who work in the trenches know. Juries generally get it right.
This report from an Arkansas trial closes the book on a recent clash between new media and jury trials. The trial judge ruled that a twitter users tweets were in bad taste but did not amount to misconduct. He declined to grant a new trial to Stoam Holdings, a building materials company.
Twitter, Facebook and Google present enormous challenges to trial lawyers. The problem arises from the need to base case decisions on the evidence in the courtroom. In the early years of my career, judges simply instruced jurors not to drive by accident scenes, make independent inquires or perform out-of-court research. I suppose I could be naive, but I think that jurors generally complied.
I imagine that jurors simply don’t or won’t anymore. They can Google and facebook witnesses. They can send tweets. In short, they can and will refuse to follow the instructions that the only evidence worthy of consideration is the evidence presented in the courtroom.
While I imagine that many jurors would snort at the notion, there are good and important reasons for the rules. Lots of evidence is out of bounds because it doesn’t meet the standards of admissibility. But there’s a more subtle reason for the rule. When evidence is presented in the court room, both sides have the ability to challenge its validity and interpretation. When it’s located as a result of a juror’s out-of-court search, it may be accepted as valid without the ability to truly challenge the evidence.
Take the simple example of a Web MD search. Here is the link to a Web MD article on neck strains. It’s easy to locate, and it provides all sorts of good information about the problem of neck injuries that typically occur in motor vehicle collisions.
But that Web MD information tells you nothing about Ms. Jones the hypothetical person whose claim may be tried next week. Relying on that information without explanation from Ms. Jones treating doctor might lead to misinterpretation of the information or misapplication of the general concepts.
Short version is that the juror who has gone off on a lark has Googled his or her way to a potentially misleading result. That’s the most important reason for the rule.
The twitter case linked at the beginning is just a start. I imagine we’ll see radical changes to the way we try cases because of the access to technology.
Good article here on a growing practice. Trial lawyers use the internet to find out background on potential witnesses, potential parties, and even potential jurors. This includes social networking sites to find out what the real story is on someone involved in a case. The article raises questions about whether it’s ethical to dig into potential jurors’ internet postings. Assuming there’s no hacking involved, I don’t see any problem finding out as much as I can about a potential witness or juror.
I can learn a lot more about a person from reading her MySpace page than I can from the stifling and artificial question and answer session of jury selection that goes on in the courtroom.
The interesting part from the perspective of those of us in the trenches is the time clash. Depending on the local rules, trial lawyers frequently don’t get names of prospective jurors until the beginning of jury selection. And often those are called out orally in open court, and you’re scrambling to record the name. Then, you might little or no time to question prospective jurors before deciding on whether to challenge or strike a potential juror. It’s that short window of time that is the most important to look for background.
Imagine that there are maybe 30-50 potential jurors being interviewed with decisions to be made in a matter of hours, sometimes less. The bottom line is that it’s very hard to do effective background searches under these conditions. Even so, we all try because a toxic juror who does not disclose bias in jury selection can unfairly destroy a case.
The title is unfortunate, but this Oregonian piece gives a good feel for the critical importance of jury duty. I especially appreciate the extensive discussion of Judges Bearden, Walker, Wilson and LaBarre’s methods of promoting the importance of jury service.
I served on one jury in a criminal matter some years ago. It was an experience I will never forget. I was impressed by the people who served with me. They understood that we serve in order to provide an open system of justice. There was grumbling, of course, as it’s neither fun nor easy. Still, it’s critical to the healthy functioning of our state.
The stories recounted in the linked article illustrate some of the true challenges of jury service. As well, you can find good first-hand accounts here and here from people who served in a high-profile case.
Jury service is not easy, convenient, or fun. Still, it is one of the most important roles any American can play to help maintain the integrity of our justice system.
Great news. Another juror from the recent Craig Berkman trial contacted me following the most recent post about the Berkman case. Jim served as the presiding juror. He is properly proud of the hard work that he and his colleagues did on the case. He’s apparently been following the thread on this case, and he weighed in with the following:
I saw your blog posting about total damages and wanted to comment. The chicken scratch on the verdict form is mine – I was the presiding juror.
If you add up the amounts in questions 8, 9 and 19, the amount that the jury intended to award in economic or compensatory damages totaled $30,514,921. Note that’s separate from the $23M+ awarded against Arthur Anderson. And separate from the $15M in punitive damages awarded the following day.
But for reasons I don’t fully understand, the court interpreted some of the numbers differently and came up with a lower total number for the damages. This was despite two questions of clarification that were submitted to Judge Hodson during deliberations (and answered in what appeared to be a clear and concise manner). Many of the jurors were upset about that, particularly given it may have made Arthur Anderson look “more guilty” than Craig Berkman because the reported amount of damages against Anderson was more than Berkman. Further confusing the issue is that different amounts were reported in different news sources. Candidly, if we had known that the $30M total would be reduced, this probably would have affected the amount of punitive damages awarded.
Of course, this is probably a moot point given Mr. Berkman claims that he, personally, and his companies are millions in debt and it’s questionable how much the victims will end up receiving.
More from David: Jim is referring to the verdict form that is posted in this entry.
Jim-As with your colleague in her earlier post, it’s apparent that you and the other jurors served attentively and worked hard to do the right thing in this case. Once again, it shows the strength and integrity of the Oregon jury system. Kind of makes me proud to be part of this thing. Thanks so much for sharing your experience with us. Even though I have no connection to your case, I want to thank you and your colleagues for your service.