Voir Dire

This week I did jury duty, for the first time in my life. The highlight of the first day is a brief film on the history of the jury system, narrated by Diane Sawyer and Ed Bradley, who were presumably chosen for their long experience dispensing impartial justice on 60 Minutes. On the second day I am empanelled, which is a curious experience.

Twenty of us are chosen to make up a jury of six, with three alternates — which seems like a lot for what is expected to be a one-week trial — for a medical malpractice case.

We are numbered and directed to a tiny room with just enough space for 20 numbered theater seats, plus two chairs and a desk in the front for the plaintiff and defense lawyer. I take my seat, #16, and fill out the form. It asks for name, years of residence, occupation, employer, family members’ occupations, hobbies (hobbies?), and then whether you’d sued or been sued or served on a jury before.

The plaintiff’s lawyer collects the forms and tells us about the case. A child, now 20, has had a kidney transplant and is on hemodialysis. The plaintiff maintains that none of this would have been necessary had his pediatrician diagnosed his ailment much earlier; so the central question is whether the doctor was negligent in failing to diagnose it, or, as the lawyer puts it, “fell below the standard of care.” In other words, twelve laymen will pass judgment on whether a doctor’s treatment was adequate to the standards of the profession fifteen years ago. The usual.

The plaintiff’s lawyer asks each of us to describe our lives in sixty seconds. It’s not a roomful of idiots by any means. There is an Israeli immigrant who owns a chain of a clothing boutiques, a health care stock analyst, a social worker, two Goldman Sachs investment bankers (one retired, although he appeared to be no more than 45 or so), an Argentinian immigrant who is a school principal, two librarians, a nuclear medicine technician, a vice president of personnel, a customer service representative, three marketing executives and a couple of software developers, including me. Nearly everyone speaks in complete, parseable sentences. Most of the men state their ages; none of the women do.

The lawyer follows our summaries with a few questions. He asks what our experience is with the medical profession — long-term illnesses, doctors in the family, health care clients, that sort of thing. He asks some of us about our hobbies again. He asks three panelists whether they would set an absolute ceiling on damages; all say no, which I suppose is how $28 billion judgments are entered against Philip Morris. He asks several panelists if his inability to present the case elegantly — and it is true, he is not a notably elegant speaker for a trial lawyer — will affect their decisions. They all deny it, of course.

The panelists divulge their biases scrupulously, so far as I can tell. The social worker admits to having an attorney for a husband; the school principal confesses to being an attorney, back in Argentina. One of the librarians has a close friend who’s had a kidney transplant. The two attorneys question her in another room for a few minutes. Three or four of the panelists volunteer to confer with the lawyers privately, presumably to disclose private biases.

When my turn comes, I mention that I’ve written about tort law. (I favorably reviewed Wally Olson’s book, The Litigation Explosion, many years ago.) I am promptly removed to be questioned in private by the two attorneys and the judge. The plaintiff’s lawyer asks if my views on tort law will affect my judgment of this case. I say no, since the jury would apply the law, not rewrite it. The defense lawyer asks a more interesting question: whether my desire to “see my theories play out” by serving on the jury might induce me to suppress any biases I have. I say no again, that my interest is in how the law ought to be, not how it is applied in a particular case. This concludes my private interview.

Finally we all finish our biographies, the plaintiff’s lawyer sits down, and the defense lawyer, who has been nearly silent to this point, rises. He reminds us that we can’t go back in time, and that we have to try to imagine what the pediatrician knew in 1988, when the disputed treatment took place, and now what we know today. He questions three or four jurors individually. He asks one woman, who has two retarded sons, if she can separate her feelings about her sons’ medical treatment from her feelings about the plaintiff’s. Unfortunately yes, she says. Why unfortunately? Because, she says, it means she might have to serve on the jury.

The defense lawyer then makes a circuit of the room, asking each of us if we are willing to award no damages if the plaintiff’s lawyer fails to prove his case. We all say yes. The two lawyers leave the room to confer with the judge. Ten minutes later a clerk comes in and announces the jury.

Open bias disqualifies a few of us. The health care stock analyst and a woman whose brother is a doctor, both of whom confess to favoring doctors, don’t make the jury. An AOL/Time-Warner marketeer whose mother died of cancer and who admits to being dissatisfied with her treatment doesn’t make it either.

Knowledge of or experience with law or medicine appears to be a disadvantage, though not an absolute one. The nuclear medicine technician is dismissed; so is the woman with the two retarded boys; so are the social worker with the lawyer husband and the Argentinian ex-attorney. But the librarian whose friend had a kidney transplant makes the jury. So does the vice president of personnel, even though she used to work for a health care company and frequently arbitered disputes involving doctors.

Neither of the investment bankers makes the jury, though neither showed an obvious bias or had any medical or legal connections. Maybe plaintiff’s lawyers in medical malpractice cases just don’t want investment bankers. I too am dismissed, wisely I think.

On the whole I was impressed with the process, and with the jury that results. Of course this jury will be called upon to decide whether a doctor met “the standard of care” that prevailed for pediatric kidney ailments in 1988, which is a matter far beyond their competence. But that has nothing to do with the process, or the participants, and everything to do with the state of the law. Next time you’re called for jury duty, go. I recommend it.