Blagojevich Jurors, the “Fist to Five” Vote and Three Other Important Deliberation Notes

Rod Blagojevich was found guilty. Bo-ring! My question, of course, is what did the jury think?

The Chicago Tribune has that covered. The neat thing to come out of the article was how the jurors took preliminary votes. Rather than using a straight up “guilty/not guilty” vote, they used the “fist to five” method, which I had never heard of before.

As the Tribune puts it:

Instead of private ballot, they did a “fist to five” vote, a consensus-building technique Karin Wilson suggested. If a juror raised a hand with all five fingers, that meant they were leaning strongly toward guilty. A fist was innocent. If the juror was somewhere in between, the number of fingers held up gave an indication of which way she or he was leaning.

Brilliant!

After doing a little research, this is apparently a common decisionmaking tool in corporate meeting settings, or at least in those corporate “six-sigma”-type retreats where people discuss management, leadership skills, how to run a business, etc.

Frankly, it sounds like one of the neat ideas you get after a seminar but never really put into play. I’m glad to see it worked!

Another thing that stuck out was that the jury considered the impact that the verdict would have on Blagojevich’s family. As the Tribune reported:

The panel discussed how the verdict would impact the lives of his two children, daughters Amy, 14, and Annie, 8. Ultimately, they said, they pushed those feelings aside and concentrated on the evidence.

“Everyone brought up that he had a family and young daughters,” the forewoman said. “This is a real human being, and it makes you kind of nervous. But we knew we had a job to do and stuck to the evidence.”

Sometimes we like to pretend that the jury won’t think of these things. Of course they will. We’re all human. A good lawyer will consider this and maybe even address it a little bit if the judge allows.

The third thing I noticed will give strength to the “reptile” attorneys reading this – the jurors hoped their verdict would “send a message” to other politicians. That’s really how all attorneys hope a jury will think. Examples would be hoping a medical malpractice verdict would send a message to other doctors/hospitals/nursing homes that sloppy practice won’t be tolerated, or that a car accident verdict would send a message that safe roads are important, or even that a defense verdict would send a message that bad lawsuits would not be rewarded. Of course, it is reversible error to directly tell a jury to “send a message”.

Finally, the article linked above mentions several times how well the jury got along. This contrasts with the last Blago jury, where the deliberations were far more tense and the jurors really didn’t get along well. I think the trial tip from that is to try to pick jurors who will work well with others. Stay away from jerks.

Hopefully we all learned something from this. Illinois – we have more imprisoned former governors than you do!

(Howard Zimmerle is a trial lawyer in Rock Island Illinois, practicing in much of Western Illinois and Eastern Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

Washington Post – Wrong Site Surgery Happens 40 Times a Week

Holy crap… that’s about all I can say about that. This article is amazing. You would think that wrong site/wrong person surgery could be prevented (and it can), but it still happens. A lot.

All sorts of problems still happen with regularity. Surgery based on test results given to the wrong person. Flipped x-rays (really? even in the digital age where all x-rays are on a computer?). Marking the wrong side of the body or the wrong vertebra.

Several years ago, the National Quality Forum coined the term “never events” to describe medical errors that are almost entirely preventable. These include:

• wrong site/wrong patient surgeries,
• medication errors,
• wrong procedures,
• retained objects after surgery (clamps, sponges, etc),
• pressure ulcers or bedsores,
• injury due to incompatible blood or blood products,
• death or serious injury due to hypoglycemia

and several other very preventable but very serious errors. You can read more about them here.

The bottom line is that medical errors – even dumb ones – keep happening at a higher rate than they should. Even the staunch tort-reformers would have difficulty arguing that someone who is injured or the family of someone who dies from wrong site surgery or another one of these “never events” doesn’t deserve fair and full compensation. That’s where we come in.

(Howard Zimmerle is a medical malpractice and nursing home negligence lawyer practicing in Illinois and Iowa. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

Be a “Real Man” – Die Early in an Accident

A new study shows that (white) people in southern states are more likely to die in accidents than (white) people in northern states. I wish I had the entire study instead of the writeup, but the main point seems to be this:

A “culture of honor” leads people in southern states to take more dangerous risks.

How does that affect your case?

1. People who try to act like “real men” – you know, the beer swilling, Chuck Norris loving, tobacco chewing good ole boys – are more likely to engage in risky behavior. This goes for women too, interestingly enough. That means that these folks are more likely to drive recklessly, ride a motorcycle without a helmet, etc etc. They cause accidents (and make accidents worse, like when they don’t wear a helmet).

2. These types of people (who, of course, can be found everywhere) are less likely to be sympathetic on a jury.

So how do you deal with this type of juror? The focus in closing argument has to be about honor. About how the defendant needs to “man up” and face his responsibility. How the jury can’t let people act dangerously, hurt someone, and get away scot-free.

Likewise, if you recognize that you ARE this type of person, don’t take this to mean that I don’t like you. I do. I just want people to stick around a little longer, and another study linked above shows that injuries are the leading cause of death for Americans under 45.

So be a man. Just don’t be stupid.