By Larry Brooks
I feel compelled to reply to the essay by Judge John Curran in this space about medical malpractice trials. As he himself said, “his comments about the law and juries require a response.”
I have been summoned to jury duty six times, four times before the system was reformed to create a new call-in process. I have served on two juries – a civil case and a criminal case – and went through voir dire many times more.
In the old days, before they reformed the system, a prospective juror sat in a “bullpen,” a large room where we waited sometimes all day to be called for a case.
I have spent many hours talking with prospective and actual jurors to learn their true feelings about the legal process and their responsibilities in it. Many of them seem to view jury service as an imposition rather than a citizen’s duty; they look to get out of it more often than looking forward to serving.
To the judge’s point about “excellent and diligent people who serve on our juries” doing what they are instructed to do, let me share this anecdote.
All jurors are instructed to keep an open mind until they hear all the testimony in a case.
One time while I was going through voir dire for a petty theft case in City Court, I was in the box with prospective jurors and the questioning had been completed. As lawyers went up to the judge with their choices, some of the jurors started chatting. One said, “that sonofabitch is guilty as hell.”
Several others nodded in agreement. I said, “you’re supposed to keep an open mind and not decide until you hear the evidence.”
Just then we were interrupted by the judge, who announced the selections: I was the only one excused, the rest were on the jury.
Now, my experience is anecdotal but it is more extensive than most of the people I know. I can tell more stories than this space will allow.
Anecdotal or not, I have to tell you, your honor, that your faith in juries is misplaced. You are kidding only yourself if you think juries follow your instructions to the letter.
In his groundbreaking book “Thinking Fast And Slow,” Nobel Prize winner Daniel Kahneman summarizes decades of research on human decision-making that turns out to be not as rational as you think.
It’s fraught with emotion and reflex more than reason.
Having this jury experience leaves me with little faith in the jury system. And, your honor, “a bad result to the patient by itself does not make the doctor liable” is not how many people feel; lawyer commercials on TV work against that perception. I’m on the physicians’ side on this one.
Larry Brooks has served on a number of juries.