Articles Tagged with trial

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Yesterday I was in the Chicago O’Hare airport after taking the deposition of a defense expert anesthesiologist at the University of Chicago and sat down for lunch next to a nice couple from the Boston area.  We started talking and I, of course, told them I am a plaintiff’s personal injury trial lawyer from Atlanta in Chicago for the purpose of taking an adverse expert witness’s deposition. They were mesmerized. We talked a bit about the case which led, predictably, to their telling me about their personal experiences with both the Criminal and Civil Justice Systems.

The husband of the nice couple told me about  his experience in serving on a criminal jury as the foreperson. Like most folks facing jury duty, at first he was upset about missing work, resented being herded around the courtroom like cattle and being kept in the dark about what was happening, and was overall just unhappy about being forced to take part in the entire process.  Yet, as the testimony came in and the trial moved on,things, including his attitude, changed.  The case was about a man, the defendant, who allegedly had abused his three year old son.  The man had taken his son away from the child’s mother’s home but the mother wasn’t even aware of it. The evidence against the father was, apparently, overwhelming.  My new buddy, who was telling me about his experience, was picked to be the foreperson of the jury. He immediately felt an enormous weight on his shoulders to do the right thing. Not all of the jurors at first wanted to convict, even though he felt the evidence to do so was overwhelming.  Some of the jurors wanted to hear some of the testimony again, some of them wanted to see pieces of evidence again. They wanted to be sure.  In the end, the jury voted unanimously to convict. My new friend said that when he read the verdict out loud in the courtroom, he felt an enormous sense of duty and pride. He felt moved to tears. The jurors, to a person, took their duty very seriously and followed the court’s instructions unwaveringly.  He felt like he was the little boy’s hero.  Now, looking back, he hopes he’ll get the chance to serve on a jury again.  Both he and his wife said that if they were ever the parties in a trial, they would want people like themselves serving on their jury.

Fascinating story, but I’m not surprised. This is often the story I hear from people who have served on juries, criminal or civil.   The sense of duty is extremely strong. By serving on a jury, you are breathing life into the United States Constitution and doing your part as a citizen to make our judicial system work. Without jurors, the system would collapse and we would cease to be a democratic nation.  Jurors ensure that a person’s constitutional rights to a fair trial by a jury of his or her peers is protected.  That is not overstating things. And something about being in the formal courtroom, where lives are at stake, where injured plaintiffs seek to have the harms done to them balanced by damages from the wrongdoer, makes that sense of honor and duty to your nation come alive. Jurors are the heroes of victims of crime and of those citizens who are personally injured through no fault of their own. The courtroom is the great Equalizer, where the son of the richest man in America is the equal of a homeless person, and where the smartest graduate of Harvard University is the equal of a high-school drop-out. All persons are treated equally in a court of law.

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You Supreme Court nerds out there (and you know who you are) are probably aware of the fact that the United States Supreme Court  recently heard oral arguments in  McWilliams v. Dunn. At issue in the case is whether James McWilliams, an indigent defendant whose mental health was a significant factor at his capital trial, was entitled to an independent psychological expert to testify on his behalf. The prosecution presented the expert testimony of one psychiatrist and argued the Defendant was not entitled to his “own” psychiatrist as the one offered by the prosecution was essentially neutral, even though he was retained and paid by the State.  Stephen Bright, longtime president of the Southern Center for Human Rights, represented McWilliams.  The issue presented to the Supreme Court in McWilliams was this:  “Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.” Amicus, the podcast by Slate that focuses on the Supreme Court, covered the McWilliams case in its latest episode, “The Myth of the Neutral Expert.”

This is a fascinating discussion, especially considering the very life of an inmate hinges on the opinion.  Some states have even placed a temporary halt on executions for inmates on death row until the McWilliams opinion is delivered.   As a personal injury trial lawyer, I mused how expert witnesses are treated differently in civil cases, you know, in cases where mere money is at issue and not someone’s life or liberty.  Of course, having one so-called “neutral” expert witness, to testify for both sides of a case, would never happen in civil cases.  I haven’t tried a case without the appearance of at least one expert witness at trial in well over 20 years now. My cases are complex and naturally either require or will benefit from expert testimony. At a minimum. I will present the testimony of a treating physician, who certainly is an expert in his or her medical specialty, even if not an expert “specially retained to testify at trial.”  In civil cases, especially medical malpractice cases, we often hear such testimony described as “The Battle of the Experts.”  Defense attorneys have gotten into the habit of hiring just one more expert than the plaintiff has so that they can argue they have “more” experts on their side and, therefore, naturally, you should side with the party who has more experts (regardless of how credible those experts are!).  What jurors may not be aware of is that the defense experts are being paid by the defendant doctor’s malpractice insurance carrier, not the doctor himself, so the sky’s the limit.  Not so for plaintiffs.  Plaintiff’s must front those expenses out of their own pockets, and because no individual plaintiff can afford to do so, this means the plaintiff’s attorney must pay for the experts in a case on his or her own dime. That may not make sense to you but that’s how it works.  As you can imagine, hiring numerous experts simply to have one more than the other side has can get expensive.  Where does this end? But defendants have unlimited sources of money for this and plaintiffs don’t.

Here is the law of Georgia that the trial judge will read to the jury regarding expert witnesses:

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Friends:  I have to confess, I back slid recently and agreed to mediation of a client’s case.  I had not agreed to a mediation of my clients’s cases in several years, primarily because of a sense that mediation  generally was not successful and perhaps was even counterproductive, pushing the opposing parties even further into their corners as positions became entrenched due to ridiculous positions taken during mediation, all through the implicit stamp of approval of a rather expensive mediator (who, by the way, gets paid regardless of whether he or she is successful in resolving the case).  I regret allowing my client to agree to mediate his case. And again, I have made my pact with myself  not to make that mistake again. Here is a short list (certainly not exhaustive) of reasons why I have fallen out with mediation of personal injury cases.

  1.  Defense counsel get away with childish, immature positions and remarks.  I had a case once in which the insurance carrier wanted to try to settle prior to my filing a lawsuit. I gave them a dollar amount to do just that. They refused. They took the “so sue me” attitude. So I accommodated them and sued their insured.  After two years of litigation, when the insurance carrier is in the corner because of the egregious facts that I have now exposed during discovery, I make a new demand reflecting the increase in value of the case in the last two years.  Defense lawyers and the insurance adjuster say they “are hurt” by the increase and take away their initial offer in bad faith at medication.  Did I not tell them that their best opportunity to settle the case was before I filed suit and litigated the case for years, and that in so doing, their case would only get worse?
  2. Defense counsel approach me to mediate, saying “they really want to get the case resolved.”  So I agree to mediation. My clients take a day off from their jobs. We are paying a mediator. Insurance adjuster offers at mediation only what was already on the table BEFORE mediation and says that’s it, take it or leave it.  That’s one of the most UNprofessional things I can even imagine, yet it happens. A simple phone call to me would have sufficed. Yet they put my client through the stress and expectation that maybe finally, after two years of duking it out, they have come to their senses and want to resolve the case for what is only fair. Nope.

juryboxdrawing Can a jury believe what it sees? That may seem like a stupid question, but a new study confirms it’s not.  G. Daniel Lassiter, Ph.D., of Ohio University,  recently conducted a series of experiments using focus groups and videotapes of criminal interrogations. Mock juries were shown exactly the same interrogation, but some saw only the defendant, while others had a wider-angle view that included the interrogator. When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.

Along the same lines we are definitely aware that people confess to crimes they did not commit. This has been proven scientifically time after time. But why?

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The recent jury verdict in the Coach Jim Donnan trial surprised me.  I thought the jury would find him guilty. That’s because, unlike the jury, I never heard all of the evidence admitted in court. All I heard was the media’s spin on things, which led me, without a doubt in my mind, to believe the jury would convict him.

Not so fast.

Remember innocent until proven guilty?  Well, the State of Georgia just never made it that far in this trial.  The jury foreman said:

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