In many areas of litigation, expert witnesses provide crucial testimony about all sorts of things. Issues addressed by experts include the medical condition of a party, the complex financial transactions of an investment scheme, the mental capacity or sanity of an accused, and the safety of a product.

In the American system, experts are hired by either party, and they testify for the party that hires them. In many other judicial systems, experts are hired to advise the court and do not work for either party.

Some view the American system as a horrible practice. The criticism is that experts become little more than information prostitutes who sell themselves to the highest bidder. I don’t subscribe to this view, for what it’s worth.  My take is that an expert who can’t be objective is nearly worthless. Jurors look to us for credibility. I lose that credibility if my expert cannot take a principled approach to testimony.

All this is a long way around to this New York Times article about expert hot tubbing.  In expert hot tubbing, the experts appear at trial together and address the issues jointly. They even ask questions of each other and discuss the case jointly in front of the trier of fact.  The article claims that the practice originated in Australia.  It’s an interesting thought, though I have to wonder whether it’s the panacea suggested by its advocates.   After all, if an expert truly lacks scruples he or she isn’t going to change that point of view by appearing at trial with the opposing expert.

Even so, it’s an interesting view of the world. For those who geek out on the details of the civil justice system, it’s well worth the read.

David Sugerman

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.

David Sugerman

Special guest today. I received a lengthy email from one of the jurors in the Craig Berkman/Arthur Andersen case, and I’ve republished most of it below. The juror is Karmen, a woman, who identifies herself as a juror who sat on the recent Berkman trial. Here is her account, which I’ve edited just a bit for brevity and clarity.  I’m fascinated by her account and hope you will be, too.

***

Hi David,

Thank you. Yes, it was a lot of work. There were over 500,000 pieces of paper in this case, fortunately we didn’t see them all though, we saw the same (approx 200 over & over & over :) This was my first time serving on a jury, so that was an experience in itself. I had no idea how it worked exactly or what to expect, and certainly didn’t think it would last for so long.

Its nothing like what you see on TV. The attorney’s crack jokes, and even Judge Hodson laughed and surprisingly, he didn’t have to use his gavel, not even once. Closing arguments take 20mins on TV, but ours took all day.

I know it was very hard going into that jury room during breaks and not being able to talk about the case, it was the elephant in the room we couldn’t acknowledge. So we scrutinized and talked about everything else attorney’s tie’s, the “theatrics” in the courtroom, wondering who the people sitting in there everyday were, and we played a lot of scrabble.

I didn’t always keep a straight face, or keep from rolling my eyes in the courtroom. It’s annoying & frustrating when the evidence is right there, yet someone is trying to tell you it’s not what it obviously is, or to listen to a witness who says nothing but “I don’t recall” for 2 hours. More than once I honestly thought “They must think we’re stupid”.  Well, none of us were.

I was very impressed with the Bullivant attorney’s & Mr. Fortino, and I think they did a wonderful job of representing the plaintiffs, and obviously proved their case to us without a doubt.  Mr. George even impressed me; he did a good job with what he had to work with, as far as the evidence, etc. But it was a weak case.

It was a little difficult seeing Mr. Berkman in there everyday, because he’d make eye contact with us and smile, and I hated that. I didn’t like it when the witnesses did that either, but you really have no choice but to keep looking at them when they do it. I understand why they do it, but it was difficult.

Our first witness was Jordan Schnitzer, and I really liked that guy on the stand. He wasn’t intimidated at all. He took no crap and got his licks in as fast as he was getting them.

The most difficult part was deliberating. I felt bad for Mr. Berkman, as a person. But I wasn’t there to see him as a person, I was there to weigh the evidence, and determine what (if any) damages resulted from that evidence.

When it came to damages however, I still had to occasionally remind myself that WE were not ruining him, WE were not tarnishing his name, WE were not the thieves, WE didn’t try to hide anything, and that whatever we decided was not OUR fault, but his…. He did this to himself, it was just our job to determine what was due to the plaintiffs and not to worry about how old, pathetic, broke or ruined he was as a result of his actions. But that wasn’t always easy, it was emotionally draining at times.. the whole thing was.

You realize the responsibility you have.  It’s a lot of pressure, and its stressful. What’s even worse, is not being able to talk to anybody about the stress you’re under.

In the end, I stand behind our decision 100% for Craig Berkman & Arthur Anderson.

This whole thing has been a learning experience I will never forget, or regret doing, and I’m glad I was a part of it. I feel justice was served.

I had so many people telling me I should try to get out of jury duty, and what to do & say to accomplish that.

The funny thing is, I’m 37 and always hoped to be called for jury duty, I just never was until now. So I was actually hoping to be picked.. and I’m glad I was. I think everyone should do it if they can, at least once. For the experience.

I was fortunate enough that my job paid me my regular wages while I served, but not everyone who served with me got paid from their job. They did it on the $10 a day the court paid.. for 5 weeks!! I give them so much credit for not asking to be excused on those grounds.

We had a really great group of people, there were some tense moments, but for the most part we all got along & after spending so much time together, we really got to know each other.. 7 of us went for much needed drinks yesterday and I hope we’ll keep in touch.

So there you have it, some of this jurors thoughts…

Thank you for your kind words,

Karmen

***

Karmen-Fabulous. Thanks to you and your peers for making our jury system work. It’s really one of the true strengths of our country, isn’t it?

David Sugerman

For any of us who have had to place a child in daycare, there’s that haunting fear in the background about whether our children will be safe. Unfortunately, it’s easy for unregistered childcare providers to operate in Oregon. Under the applicable rules, small operators do not need to be licensed. But even those care centers that should have a license can apparently operate without getting licensed.

This is one more example of the frightening effects of deregulation. We’re told that regulation is bad and that taxes and government services are worse. And so there is no one watching to make sure that daycare providers comply with the law. While it might seem like apples and oranges, I can’t help but think about the link between this sad story and the FAA inspectors who faced retaliation for blowing the whistle on safety problems at Southwest Airlines.

I suppose that if I were looking after my own self-interest, I would welcome this era in silence. After all, I’m the guy that gets the call to represent the profoundly injured child or the whistle-blowing airline employee. So deregulation, which means more injuries, is good for the trial lawyers. Ain’t that a great irony?

David Sugerman

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