Tag Archives: jurors

Juror Collapses in Med Mal Trial – Defendant Doctor saves her. What happens next? (UPDATED!!)

This is one of the most common war stories you hear in the medical malpractice world – someone in the courtroom collapses during a medical malpractice trial, and the defendant doctor runs in to render aid and save the day.

Everyone claims to know someone this has happened to. It’s the Eddie Murphy in the elevator of lawyer stories.

Here’s one time it actually happened. 

Bottom line is that the District Court allowed everyone involved to compose themselves over the lunch hour, polled the jury, and when the jury said they could still be fair and impartial, refused the Plaintiff’s request for a mistrial. The Court of Appeals reversed.

I tend to agree with the Court of Appeals. The bigger key is that if this happens to you, there are some citations in the opinion with other cases – so remember that if you need a quick brief on the issue.

EDIT: The Iowa Supreme Court reversed the Court of Appeals and allowed the verdict to stand. I disagree, but I see their logic. The opinion is here. 

(Howard Zimmerle is a personal injury and medical malpractice lawyer in Rock Island, Illinois, practicing in Iowa and Illinois. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com).

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New Illinois Rule 243 – Jurors Can Ask Questions!

Big news today – the Illinois Supreme Court adopted Rule 243, which allows jurors in civil cases to ask questions in certain circumstances. The rule reads as follows:

New Rule 243
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit
to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court
shall determine whether the jury will be afforded the opportunity to question the
witness. Regarding each witness for whom the court determines questions by jurors
are appropriate, the jury shall be asked to submit any question they have for the
witness in writing. No discussion regarding the questions shall be allowed between
jurors at this time; neither shall jurors be limited to posing a single question nor shall
jurors be required to submit questions. The bailiff will then collect any questions and
present the questions to the judge. Questions will be marked as exhibits and made a
part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question
to all counsel, allow counsel to see the written question, and give counsel an
opportunity to object to the question. If any objections are made, the court will rule
upon them at that time and the question will be either admitted, modified, or
excluded accordingly.
(d) Questioning of the Witness. The court shall instruct the witness to answer
only the question presented, and not exceed the scope of the question. The court will
ask each question; the court will then provide all counsel with an opportunity to ask
follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems
appropriate, the court shall advise the jurors that they shall not concern themselves
with the reason for the exclusion or modification of any question submitted and that
such measures are taken by the court in accordance with the rules of evidence that
govern the case.

The rule can also be found here.

So what does it all mean, practically speaking? A few thoughts:

  1. Judges do not have to let jurors ask questions. I suspect many older judges won’t do this at all. I’ve spoken to some local judges who are excited about this possibility.
  2. There is room to object and/or edit the question away from the jury. This is important, as I sure don’t want to object to a juror’s question in front of them.
  3. No discussion between the jurors. This is good too – it prevents preliminary deliberation.
  4. This does not need to happen for every witness. Hopefully this doesn’t slow down trials too much, although in a way it reminds me of letting fans suggest pitches to a pitcher – slowing down an already molasses-slow process.
  5. I’m a little scared of this. I like control. I usually know what the defense lawyers are going to ask, and they probably know what I’m going to ask.
  6. I also like the idea that jurors might feel more involved and more “into” a trial. This is a much better option than having jurors who are asleep by 1pm the first day of trial (or even in closing arguments… I had a juror sleep through my closing arguments once, and guess what… she became the foreperson, and I lost. GRRR…)

What do others think?

A recent article in the Illinois Bar Journal notes that other states and federal courts have tried it, and that the reaction of juries, judges and even attorneys has been largely positive.An example of this would be a pilot program in New Jersey, with similar results.

Will it change case outcomes? We’ll see. This may be the biggest change in trial practice since I became a lawyer – or it might be nothing.

(Howard Zimmerle is a plaintiff’s personal injury lawyer practicing in Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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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)

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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.

 

 

 

 

 

 

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What’s on my Bookshelf – 14 Good Books for Trial Lawyers/Trial Practice

So here are the books I’ve bought in the last 5 or 6 years specifically to help my trial advocacy. Some are better than others, but each one is worth at least a look. In no particular order:

1. Ball on Damages – David Ball

2. Reptile – Ball and Keenan

3. Win Your Case – Gerry Spence

4. Who Will Speak for the Victim – Perdue

5. Words that Work – Luntz

6. What Americans Really Want, Really – Luntz

7. McElhaney’s Trial Notebook – McElhaney

8. Polarizing the Case – Freidman

9. Rules of the Road – Friedman

10. Moe Levine on Advocacy

11. Your Witness – Lessons on Cross-Examination

12. Ladies and Gentlemen of the Jury – Greatest Closing Arguments in Modern Law – Lief

13. Legal Blame – How Jurors Think and Talk About Accidents – Feigenson

14. Exposing Deceptive Defense Doctors – Sims

(Howard Zimmerle is a lawyer from Moline who practices accident and injury law in Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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New Preliminary Jury Instruction in Illinois – 1.01

Here it is – and it’s good.

If you remember, 1.01 was just re-done a year or two ago, but they added to it again.

The gist of some of the additions-

1. Don’t google stuff. Seriously, no wikipedia, no facebook, no [insert currently relevant website here, twitter or whatever] (seriously, the instruction says “insert current examples”. Nothing like the “alter my pants as fashion dictates” approach to jury instructions. It works though – imagine an old instruction that said “Don’t go to altavista or Ask Jeeves. Stay away from the usenets. Don’t chat about it on ICQ.”

2. Seriously, don’t friggin google stuff. This is the gist of about 3 paragraphs.

3. If you do talk about this, google it or whatever, you screwed up and wasted everyones time. Oh, and you could be guilty of contempt of court. I love this part of it. It is the first one of these instructions I’ve seen that answers the “why not” question.

So now you’re officially on the cutting edge of Illinois trial practice – you have the jury instruction in front of you the day after it came out. Assuming it’s still February 1, 2011.

(Howard Zimmerle is a trial lawyer practicing in the Quad City area. He can be reached at 309-794-1660 or hzimmerle[at]mjwlaw.com)

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Empathy is Down Among College Students – How That Affects Your Jury

A new study discussed in Scientific American finds that empathy among college students has declined precipitously in the last 30 years, with steeper declines in the last 10 years. The study seems to link this to increasing social isolation – people spend less time around other people and connect more online, through facebook, etc. (This social isolation was a growing concern even before the meteoric rise of social media – take a look at Putnam’s Bowling Alone, a 2000 book based on a 1995 essay – still good reading).

A few things aren’t clear from the stub I linked – namely whether empathy grows as people get older and whether the social isolation hypothesis is causally connected or merely correlated. I know that I’ve always been an empathetic person, even as a college student. That’s probably what led me to this line of work. As I’ve gotten older, I find myself increasingly empathetic – caring more about people who I would have dismissed in my youth, understanding that we don’t necessarily know what makes someone act a certain way (a point discussed well by the late David Foster Wallace). This was summed up well in a fantastic unrelated essay by Cord Jefferson in the Awl about his decision to give his alcoholic father a kidney – “It’s not until you grow up and start making real decisions that you begin to comprehend the complexity of the web that connects a person’s heart and mind to their hands.” So maybe these college students will be more empathetic when they are 30. Or 40.

To bring this discussion back on track and away from the meanderings of my mind, consider whether you want to put young people on your jury. Several lawyers have told me that I’m an idiot if I put anyone under 25 on my juries. They might be right, they might not. I’ve said several times that you can’t assume an individual’s beliefs or values based on the characteristics of that individual’s generation.

Yet in jury selection, we have very little time to extrapolate an entire belief system from dozens of people, based on precious little information. Maybe you don’t want younger people. All I know is that when you thumb through your mental rolodex of heuristics to pick a jury, consider that younger people might not be very empathetic.

(Howard Zimmerle is a trial lawyer living in Moline, Illinois. He’s still under 30, but was never part of the quoted survey. So who knows. You can reach him at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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