Thursday, October 13, 2011

Jury duty, pt. 3

Remember when I said "and here my troubles began?" Normally you're only allowed to use that phrase once in a single product, but I think it applies here. I didn't know what I was about to get into; I thought the case was a fairly simple issue of judgment behind the wheel. It turns out that nothing is simple when people are asked to decide something, and certainly not when they've been given a whole week's worth of information to process on their own. The first day, we had only an hour before the building closed. We spent it selecting a presiding juror (a "foreman" in less-progressive states) and agreeing when to show up the next day. We also took a brief vote on the first question on the verdict form. The way it was set up, if the first question (to paraphrase, "did this bitch do something wrong?") were answered in the negative, we could go home immediately. No question of damages, breaking down culpability, or anything. That sounds great, but when you've spent so long on something you want to see it through and get your way. At least, I want those things. I've been described as something of a jerk.

During the five years and change I spent playing World of Warcraft (admittedly, I did other things during this time like graduate from college and start my career and have a girl ruin my life), I learned about the human race's infinite capacity for fucking up. It turns out that no matter the stimulus or piece of information presented, people have ways of seeing it differently. This might be a triumph of diversity or a testament to the spectrum of the human condition if it weren't for the fact that so many of those interpretations are wrong. The initial vote was split 6-6. It sounds awful, but this was a civil trial so only nine jurors needed to agree on any given verdict question. The way you're supposed to do it, you vote on one question at a time because the questions are set up in a logical order. The idea is to isolate debates on one question at a time, focusing on a single issue and eliminating the idea of "trading" votes on one question for another. It's a good idea. It doesn't work for even an instant.

Realizing that consensus needed forging, I went to work. I had specifically not put my name forward for presiding juror, because I anticipated having to argue with my fellow jurors (in legal parlance, "motherfuckers"). So I started pushing; clearly, to my mind, the defendant was negligent in driving. She chose to go through the yellow, and the video showed an easy window for the SUV to turn left. Remember, the SUV driver had settled already for an amount we weren't allowed to know. So what if the defendant had her line of sight blocked by another car? Going through the intersection when you don't know if anyone is turning left? That's actually worse to my mind, but I grew up in Boston where we actually take responsibility for our decisions. Californian drivers disagree. A Boston driver, tasked to explain all his on-road actions in retrospect, can do it. A Californian won't recall a single thing that happened, but will swear they hit their brakes. It's the ultimate description of why Californian drivers are awful: they think brake lights are fucking deflector shields.

So I went to work. I established that even 1% culpability from the defendant was enough for a "Yes" vote on the question of which this bitch fucked up. That got two votes; the rest were a group of four people. Among them, two old men, one Chinese lady, and a mom. It is not, in retrospect, surprising that these people would choose to defend poor driving as "normal." Four people were dead-set in their opposition to a single iota of responsibility for the defendant. Their resolution clearly bonded them to each other, in the worst and most predictable fashion. Has anyone else noticed that the phrases "worst" and "most predictable" describe 96% of human behavior? I needed one convert.

"Why can't you see how WRONG you are?" Or, how to swing a jury in four hours
People rarely make arguments based on substance. Most of what a given human being believes is a pungent stew of tribalism, emotion, and self-interest all coated with the veneer of calm consideration. If somebody's got a rational basis for 20% of what he believes, that's a reasonable person. Moving from this base, I started the process of persuasion. Defensiveness is one of the most intractable of human emotions, and when trying to turn over somebody's position you need to be careful. The natural human tendency is to retreat from any information that contradicts already-held belief, and so to convert somebody I couldn't engage them directly. In this, I had an unwitting ally: the "leader" of the other faction, a jowly red-faced 50something gentleman. He wasn't going to move; he was way too stubborn and way too emotionally invested in this case. But that gave me an easy target: somebody with whom I could aggressively disagree and not worry about permanently losing his vote. He was lost already, so I could drive a wedge between his extreme position and the rest of his faction. I attacked the unreasonable guy, and spared the folks who might swing. The key was just getting those "attacks," out. I use scare quotes because none of this is personal; I actually like this gentleman.

It took about four hours to hem him in. I could have done it faster, but part of managing the jury room is not talking too much. If you're seen as dominating the discussion to an unreasonable degree, folks will resent you. The key is to pick your spots: arguments you can make and win, to which you'll really commit. If a point of discussion is secondary or tertiary to your main point, sit and keep your mouth shut. It's important to let people talk and feel like they're contributing, even if what they have to say is stupid or irrelevant.

SPEAKING OF WHICH, the Filipina grandma was just the worst. Between her and the heavily-accented Chinese man, it was a circus of non sequiturs. They would insist on getting an un-interrupted chance to speak, and then spend two minutes making some point that mattered not a bit to ANYBODY and typically mis-interpreted the last 30 minutes of debate. These people are on juries all the time. Thank fucking Christ they started on my side. I'll note, the Filipina grandma was against me until I explained what a "no" vote on the first question actually meant. Again, these people serve on jury. It's probably best to avoid any crimes for this reason.

Eventually, I had the other side pinned down: an assertion by Max that ANY conduct that's legal cannot by definition be negligent. The defendant, in the absence of any left-turning vehicle, could have gotten four wheels in the intersection. Therefore she couldn't be at fault; not even a little. If you're thinking "that's absurd," you are correct. Welcome to Team Tony. Once this was on the table, I turned the screws on the young mom: couldn't you take plenty of legal actions in the presence of your children that would be inappropriate, unreasonable or negligent? Of course, the answer was yes. Faced with the contradiction, I expected her to double down. I expected to drive home really fast on the lunch recess to do shots of rum and lament the human condition, but NOT SO. This woman actually flipped her vote along with another gentleman. After four hours, I had finally shrunk the opposing argument to the size where I could throttle it with my bare hands.

And with that, the baby had crowned. This was the single hardest question for us to answer, the question that determined the rest of the case for the most part. Over the next few hours we hammered out some damages; it wasn't difficult once we agreed to some basic parameters. The Bloc of Four was always a problem, and remained pretty resolute that zero damages could be considered. They were hanging together at this point basically out of tribalism and admitted as such; it was not enough to force some self-evaluation. At the point where you realize you're making arguments based on an emotional attachment to prior arguments...well, I don't know what you're supposed to do at that point. Either change your tune, or set yourself on fire.

We didn't award many damages. I'd have liked more, but we always had to get at least one vote from the Bloc of Four and the numbers got skewed downwards to something pretty minimal (but something we could live with--this motorcyclist got seriously injured through no fault of his own). The plaintiff had screwed up himself, eschewing some diagnostic tests that probably would have revealed some lasting damage. I don't know how you spend that much time and money on an injury lawsuit without getting a fucking MRI, but that's what happened. The highlight of this second act was the leader of the Bloc of Four stating, in all seriousness, that he didn't think the defendant's negligence (remember, we've agreed to this and it's part of the official record) contributed to the plaintiff's injuries. At the point where we've agreed the pickup truck was negligent, and it plowing into the SUV caused the injury, how could anyone argue this? His verbatim line: "maybe the sidewalk impact caused the injury." Where did the kinetic energy come from to propel him to the sidewalk? Christ. Luckily, this was far too stupid for the others in the Bloc and we got some headway.

When all was said and done, we knocked on the door and told the bailiff we had a verdict. He had to open the door, naturally, because we were locked in the room by law. Doesn't seem fire-safe, does it? We came back into the courtroom and the judge read the verdict. No palpable reaction from either party of their lawyers, though the defendant's lawyer asked that the jury be polled. What's that? Well, it turns out that in California you can ask for a reading of the verdict with every juror chiming in to say if he voted for it. Not a big deal in criminal trials, as you might imagine, but if a civil lawyer gets a chance to drag out the proceedings he's honor-bound to take it. So everyone had to go through every line of the jury form stating whether they voted for it. I said "correct" every time; the opposition leader might have said it once on a minor question. I got what I wanted. And isn't that what justice is all about?

Side note 1: The lawyers wanted to speak with the jurors outside the courtroom after everything was done. Most jurors went home; I stuck around, since I'd invested so much time and effort already. The lawyers were great; legitimately interested in what we thought of their performance and what we'd found persuasive. They were very friendly with each other, and disclosed that the original settlement (with the SUV driver) had been $100,000. Additionally, everything from the collision to the plaintiff's medical expenses had been covered by ample and generous insurance. Why then, you might ask, did we go through all this bullshit? Because children can't agree on anything and need grown-ups to make their decisions for them, apparently.

Side note 2: in the hallway outside the courtroom right before the verdict was delivered, we saw the judge. Prior to that point, he'd always been up on his bench (throne, if you'd prefer). He would enter and exit the room through a door behind the bench, so he seemed very mysterious and powerful. Or some shit. Anyway, this was the first time I'd actually seen the man standing there. He was maybe, generously, five foot five. I pictured little pointy shoes beneath his robe. They'd have bells on the toes, but they'd be taped down with black electrical tape to keep from jingling while he walked. Gotta maintain decorum.

Side note 3: The fact that I was selected for this jury reflects poorly on the judgment of both attorneys. Having a juror like myself in the jury room--an outspoken, opinionated, educated person feeling no compulsion to listen to trial lawyers or bought-and-paid-for "expert witnesses"--is exactly what they should try to avoid. The court system treats the decision-making process like a dangerous weapon, so why give that dangerous weapon to the guy with the crazy eyes fingering it hungrily? I love to argue and take the process very seriously. You don't want me on your jury. On the upside, if I'm ever put in the box again I can get out of it. A brief recounting of my past jury-room experience should be enough to send any halfway competent lawyer running for the hills.

Last thoughts
First, I think the civil trial system is bullshit. If a citizen is asked to serve on a criminal jury, that's a public service. You're acting as a check against arbitrary action and helping to ensure your own protection by jury trial (should you ever be accused of a crime like possession of all the drugs you typically possess). But whom was I serving all those days and all those hours? It wasn't the state; it was the plaintiff, the defendant, and their lawyers. Dispute resolution is a specialty that lawyers pay thousands of dollars for; but why bother when we can just ask the addled Filipina grandmother and the over-opinionated metalhead to do that work for free? Juror compensation needs to be higher in general, but it really should be higher for civil trials, since the plaintiff and defendant can just pay out of pocket. That would provide a powerful incentive to resolve disputes before reaching trial, which is something I think we can all get behind. If your issue is that important or you have that much money, take it all the way. I guess this is my point: lawsuits can be valuable, but this one sure wasn't.

All that time, all that public and private expenditure, to try and wheeze a little better result out of the system than you might have got otherwise? Ugh. The upside is that I think justice really was served: though the letter of the law favored the defendant, she fucked up in a major way and put other people at risk. Somebody was hurt, and damages will be paid. At the same time, the breakdown of blame we did at the end favored the extremist "zeroes" of the Bloc of Four. The total restitution paid by the defendant will be about $5,000, paling in comparison to any of the legal expenses or even the cost of hiring one expert witness. Everyone loses, and those fuckers deserve it for not coming to a settlement. By the way, the proposed settlement before the trial was $25,000 (we couldn't know this in the jury room, obviously). The plaintiff turned it down, thinking he could get more in a trial. I would have actually liked to see him get more, but FUCK YOU for turning down that kind of cash with a hundred-grand already on the table.

Which brings us to the final lesson of this long, long tale. I'm very happy if you read this far, because I know it's been long. I'm not even sure how interesting this is to an outside observer. I know I learned a lot from these experiences, but the crucial lesson is really the repeating theme of human existence: everything is terrible, and people fuck everything up. If accused of a crime, I would absolutely want a jury trial. But I would be terrified of the bored-looking stooges in that little wooden box.

Life is great and worth living; everyone should keep living it. But please, PLEASE try to think about what you're doing. Just try to be less of an asshole. Except if the folks on the other side of the jury table are WRONG WRONG WRONG WRONG WRONG.


  1. Wait ... could you please reconcile "Life is great and worth living" and "the repeating theme of human existence: everything is terrible" using non-masochist arguments?

    Also, couldn't having plaintiffs and defendants pay jurors on civil trials lead to rich people having their way even more? The world needs that like it needs an NSync reunion tour.

  2. The former statement is pandering so I don't look like I'm condoning suicide. Life is terrible, but it's all we get and nobody likes a quitter.

  3. imagine how painful it would have been without the video