I recently spent two days on the "other side" of the jury box, fulfilling my obligation to the Montgomery County court system. My own law practice has been primarily litigation; specifically, I devoted the last four years substantially to two long antitrust jury trials, one of which lasted 10 months and the other about one month. Accordingly, I came to my jury service still vibrating from the hope-frustration-terror of wondering whether a jury was understanding at all a case that had taken years to prepare--and I looked forward to an opportunity to peer inside the mysterious jury deliberation process.
The results were both enlightening and disturbing. On the positive side, I emerged with a handful of practical litigation lessons, such as how a jury really reacts to expert testimony, and with a heightened respect for the traditional uses of the jury system. At the same time, I came away with a deepened concern that the jury may be both inappropriate and dangerous in the context of modern, complex litigation.
Upon being summoned to serve, I assumed that I would be quickly challenged and sent home to pursue the law from a more familiar perspective. As it turned out, the panel of potential jurors was so heavily stocked with doctors, lawyers and other professionals that counsel may have viewed me as the lesser of two evils. The jury ultimately selected also included an economist, a broker-dealer, an engineer, a legislative assistant and a student. We were seven men, generally middle-aged or younger, and five women, seemingly middle- aged or older. The sex-age split, as soon became apparent, reflected the accurate tactical choices of counsel for plaintiff (the men) and for defendant (the women).
Compared with my antitrust experience, the case was definitely small. The sole issue was the extent, if any, of emotional injury suffered by a young woman as a result of a traumatic accident. Liability was not contested and the physical injury was minimal. Yet, the fundamental character and sequence of the evidence was quite familiar: first came the fact witnesses, principally the accident victim and her husband, to tell their stories and to grab the jury's sympathy. Together they related the unhappy effects of accident-related stress on their work, their marital relations and their lives in general.
The victim and her husband were followed by a parade of experts (a doctor, a psychologist, a psychiatrist and a psychiatrist-neurologist), each trying to demonstrate, as in the typical big case, how his science supported one or the other of two directly conflicting views: i.e., how the alleged stress was (or was not) related to the accident and how it was (or was not) properly treated by psychotherapy.
The testimony took about a day and a half: two or three hours of factual background and then a day for the experts. Upon heading into the deliberation room, my impression was that I had heard a tremendous amount in a short time, more than I could instantly digest, though I had taken two pads of notes (note- taking by Montgomery County jurors is a matter of judicial discretion). At the same time, I felt woefully underinformed. On my own, as judge or arbitrator, I would have reserved decision for a while--taken time to review the facts, to understand the medical lore, and to look at the law. I would have felt utterly irresponsible doing less. Yet the jury came back in less than two hours with a money award, in which I fully concurred.
How did I become so decisive so fast? That now strikes me as both the real magic of the jury system and its critical limitation. I became part of a common-sense consensus--a collective lunge for equity that was not based at all on the lawyerly analysis that law school and 15 years of practice otherwise make mandatory. Together the jury exercised what might be described as mass intuition: a caring, thoughtful, compromise, gut reaction.
For starters, we largely ignored the experts. They were reasonably good witnesses and apparently eminent men in their fields, but as always in litigation, their opinions were directly in conflict. (For example, the plaintiff's experts said the emotional injury was real, flowed from the accident and required psychiatric treatment, and the defendant's expert said just the opposite.) There was no rational way that the jury could decide, on the medical merits, who was right--whether, as Dr. X maintained, plaintiff's only real need was "to get back on the horse," or whether Dr. Y was correct that elaborate "desensitization training" was appropriate. We would have been no better prepared to make similar judgments with respect to economists or engineers or accountants. Accordingly, the expert testimony was not discussed and was not a real factor in our decision, except in the very backhanded sense that it lent medical credence to any result.
What we did talk about was the plaintiff. Did we believe her story and did we want to compensate her? Though we all evinced some skepticism, a definite split developed. The men tended to favor the plaintiff, for no clear reason other than her perceived credibility and a general sympathy for an attractive young woman who was concededly the injured party. The women were considerably more critical, and several were genuinely adamant that no award be given on the separate marital relations claim. Their view was based largely on credibility but also on a quasi-medical theory that was not espoused by any of the experts: i.e., that plaintiff's symptoms may have been attributable to her discontinuance of a feminine medication.
There was no fight. We compromised. We covered the actual cost of psychotherapy (everyone agreed on that), gave about a 100 percent increase for general pain and suffering, and announced a separate zero verdict for loss of consortium.
The amount of the increase was itself the product of a compromise. Because counsel had not specified a damage amount (which I believe ended up diminishing the verdict), our starting point was a straw poll. We charted the spread of the votes--which was fairly significant--and ultimately came up with a verdict close to an average that everyone could live with. In the process, I got a close look at how a jury perceives the true cost of litigation. First, it was generally assumed that an insurance company stood behind the defendant, so that the dollars would flow from an anonymous institution to a relatively sympathetic young woman. Second, it was further assumed that the attorneys would take one-third of any award, thereby raising by 50 percent the total dollars necessary for actual costs. This jury was aware that those factors should not affect the amount of damages and duly ignored them. But from what I saw, the potential for abuse could be more than substantial.
To a lawyer as juror, the distinctly visceral nature of this overall process was definitely jarring--despite the fact that, as advocates, we routinely aim our arguments at precisely that anatomical level. Though somewhat shaken, I continue to believe that the traditional system was right for this case, and probably for the vast number of cases. The net effect of the medical testimony was a wash. The issue was then properly reduced to one of human condition and credibility--was the plaintiff hurt, did we believe her? This is precisely the determination for which a jury is the true expert, and we approached that burden with a strong sense of seriousness and responsibility. Given time to study and reflect, I could not have improved upon the common-sense equity of our quick, group judgment--nor could a judge or an arbitrator.
But there must be a logical limit to this kind of intuitive decision-making. The notion that the same process is utilized to resolve the most complex and costly issues posed by our society is genuinely disexercturbing. One of my firm's recent antitrust cases, for example, lasted close to 100 trial days, featuring an endless array of documents, fact witnesses and experts. The judge's instructions were 140 pages long--a lifetime of legal learning. Another antitrust case, though it lasted only three weeks, was almost solely dependent on esoteric accounting and economic analysis that the lawyers had struggled for a year to master and that the scholars continue to debate. To resolve these cases, the jurors could not simply winnow out the opposing experts and focus upon the human story. They had to comprehend and apply governing legal and economic principles that often become clear (if at all) only after lengthy study. Such principles were not within their common experience and were not ascertainable by the operation of a group conscience, no matter how well-intentioned.
I doubted at the time that this burden was fairly placed. Having now seen a far brighter jury react to a far simpler case, my fears are deepened. I have little faith that we got anything more in our antitrust cases than the jury's heartfelt instincts, shaped primarily by their sympathy (or lack of it) for the principal witnesses. And what the jury was thinking about such side issues as attorneys' fees, insurance and treble damages, I cannot imagine. The result in such cases depends more on lawyering and on artful or lucky jury-picking than on the true merits. The jury's "magic"--its consensus wisdom--becomes little more than ignorance of the vital facts. The process is then reduced to a high-stakes roll of the dice, which can only encourage the worst aspects of our litigious and overlawyered system.
This bleak view, of course, applies to a relatively small percentage of complex civil cases. For those, the answer, I think, is expert tribunals, and perhaps a judicial option to take the case away from the jury. In the meantime, my recent experience commands even closer attention to some old, old rules:
* A lawyer should simplify the case, and once it is simplified, simplify it some more. What counts most is the story that the jury can understand and relate to in human terms.
* A lawyer should minimize his interference with that story and the other side's. As a juror, I resented leading questions and objections and bench conferences and even "tough" cross-examination. (This resentment was somewhat affected by the relative youth of counsel. It has got to help to have "gray hair" on your side.)
* If a lawyer is representing a big defendant against a small, sympathetic plaintiff, he should look long and hard at his story. The dice are loaded.
* A lawyer shouldn't count on his experts, no matter how eminent and able, to carry the day. He has to make his key technical points in simple demonstrative exhibits and see that those exhibits go to the jury room.
* If feasible, a lawyer should arrange to run his case before a model jury. As lawyers, after years of preparation, we are just too close to predict how a juror will react.
* If a lawyer gets a chance, he should serve on a jury. The experience will scare him forever.
The writer is a partner at Arnold & Porter. This article is adapted from Legal Times of Washington.