Management & Labor

Jurors' Prudence

I used to think that, for some reason, the American judicial system was avoiding me. Over more than three decades of adult life, as a citizen of three different jurisdictions, I had never once served on a jury.
by | May 2004

I used to think that, for some reason, the American judicial system was avoiding me. Over more than three decades of adult life, as a citizen of three different jurisdictions, I had never once served on a jury. I never got a summons or even a note asking about my availability. Meanwhile, some of my friends had served two or three times.

When my daughter turned 18 and received a jury notice within a few weeks, and I still hadn't gotten one, I began to accommodate myself to the likelihood that jury service was a ritual of citizenship I was fated never to experience.

Last December, however, the Arlington County Circuit Court finally took notice of my existence, and in March I reported for two weeks of duty, somewhat cynical about the efficacy of the system but intense in my curiosity to see the process in action.

Even so, I almost didn't make it to trial. In the course of the two weeks, I was invited into the courtroom only once, as part of a group of 17 citizens selected for weeding down to 13 prospective jurors, and then, after some maneuvering by the lawyers, down to the seven who constitute a full jury in civil cases in this part of Virginia.

I made it into the group of 13. The lawyers began asking some routine questions. Did any of us know the parties in the case? Did we have a bias against plaintiffs? Nobody did. Had any of us been in an auto accident? Thirteen hands went up on that one. I told the defense counsel that I had been in a few fender benders, never anything serious, no legal proceedings involved.

That was true. I didn't reveal, however, that by an odd coincidence, my most recent fender bender had been just the day before, on Interstate 95 near Richmond. While it was minor, and I was on the road again in 30 minutes, it might have been seen as relevant to my impartiality. I thought for a second, and then reasoned that no one had asked me when my accident took place, and I wasn't required to volunteer the information.

Had I been more forthcoming, it's pretty likely I'd have been dismissed. Of the 12 potential jurors who sat in the box alongside me, every one who chose to tell any significant story at all about a collision experience got sent home. I stuck to the technical truth, and as a result, I was sworn in a few minutes later as Juror No. 5 in the case of Moshiri v. Deb.

The case was a civil proceeding stemming from a car crash on March 31, 2001. It was fairly routine. There were no life-threatening injuries, no million-dollar compensation demands. Still, the case possessed many of the elements of human-scale drama that adhere to any contest between plaintiff and defendant, regardless of the stakes involved.

Dr. Bahram Moshiri, a prominent Arlington heart surgeon, handsome, dapper and dignified at age 68, was returning to his office from lunch on a Saturday afternoon. He was a passenger; his office manager, Judy Mitchell, was driving. As she prepared to turn left at a busy intersection, her car collided with one driven by A. K. Deb, a computer technician. Just how this happened remained a matter of dispute, Moshiri claimed that Deb sped recklessly across three lanes of traffic in an attempt to cross the median and reach a tire store on the other side of the street. Deb admitted his car was partly in the median, but said he was there properly, stopped and looking both ways for traffic, when Mitchell came up in the left lane and plowed into him.

No definitive pictures of the crash scene exist. Photographs of damage to the two cars offer at least some justification to both points of view. What's not disputed is that Dr. Moshiri was thrown forward, suffered neck injuries and went through a rough time in the months following the accident. He had to stop seeing patients for a while, then returned to work on a part-time basis. He consulted an orthopedist, signed up for physical therapy, and was diagnosed after six months with an 8 percent overall physical disability. Three years later, he still performs heart surgery, but has to turn down procedures likely to last more than an hour or two, because his neck pain makes it impossible for him to stay at the operating table much longer than that.

That's what the doctor said. The defense lawyer managed to come up with a few points that were rather inconvenient for the plaintiff's case. For one thing, Dr. Moshiri had been suffering minor neck discomfort for nearly a decade, following a door-slamming mishap in 1994. The accident in 2001 must have worsened the problem, but no one could say how much--not even the orthopedic surgeon who was paid to testify in Moshiri's behalf.

Then, too, there was the matter of just how much the doctor's work routine actually changed in the wake of the accident. Prior to March 31, 2001, he had been operating or seeing patients roughly four days a week. Now he was scaled back to two or three days. That didn't sound like a drastic curtailment. Having to turn down the most grueling, long-lasting heart operations no doubt caused Dr. Moshiri some distress, but then again, it's the sort of thing that many 71-year-old surgeons might decide to do even if they hadn't been hurt in an accident.

By the end of the proceedings on the second day, I had become convinced that the plaintiff had a fairly weak case--at least when it came to recovering a large award. I was convinced further when the plaintiff's lawyer, in her closing argument, asked for the sum of $65,000 for pain and suffering. I was expecting her to seek a much larger amount--somewhere in the low six figures, at least. Asking for so modest a sum seemed an admission that the plaintiff's side lacked confidence in their presentation.

It turned out that most of other jurors felt the same way. No one thought that Dr. Moshiri had earned a big payout. The only dispute was between the jurors who felt he was entitled to reimbursement for his medical expenses--less than $5,000 altogether--and those who wanted to cut him off at zero on the grounds that it wasn't even certain who had caused the accident. In the end, the more generous faction prevailed: Dr. Moshiri was awarded $3,449.75 to cover the cost of medicine and physical therapy. None of the principals expressed the slightest emotion when the verdict was read out. My guess is both sides were disappointed--Moshiri because the amount was so small, and Deb because we had held him technically negligent.

A more interesting question in the long run is whether a jury procedure of this sort is the best means a society such as ours can find to decide legal disputes. It's fair to say there's a recurring suspicion in popular American culture that juries--whether the case is civil or criminal--are biased, easily manipulated and not very well informed. It's a suspicion that Hollywood has exploited in a whole string of movies from "12 Angry Men" in 1957 to "The Runaway Jury" in 2003. It's a suspicion that seems to find real-life confirmation every few years in profoundly disturbing ways, as in 1995, when the O.J. Simpson jury voted for acquittal despite a mountain of solid evidence pointing to his guilt.

And it's a thought that is bound to occur to any reasonably intelligent person who finds himself locked in a jury room, assigned the job of determining truth and dispensing justice, whether the issue is large or small. I looked at a whole stack of pictures of the damaged cars in the Moshiri case, trying to figure out which driver was at greater fault. I couldn't tell. No doubt someone with training in physics and expert knowledge of cars could have done a better job. But we weren't allowed to call on such a person. We weren't even allowed to see the police report written up on the day of the accident, because it was never introduced in evidence. A layman's first reaction is likely to be that there's something slightly askew in a process with rules of this sort.

The fact remains, however, that if there's a serious problem with the way juries operate in American states and localities, formal studies have failed to find it. The most comprehensive research ever done on the subject, the University of Chicago Jury Project, conducted in the 1950s and '60s, found satisfaction with the system among jurors, judges and litigants alike. Among a sample of more than 1,000 judges, only 3 percent expressed serious dissatisfaction with juries they had supervised; verdicts were described as having been "correct" or at least "tenable" more than 90 percent of the time. Ordinary citizens said they would prefer a jury trial to a judge-only trial by a margin of 77 percent to 9.

Admittedly, that was quite a while ago. All of us hear from time to time about the misdoings of juries, from their misunderstanding of the law to their racial and gender biases to their susceptibility to corruption. But these stories tend to emerge from the margins of the system, from cases involving intensely emotional issues and saturation media coverage that would strain almost anyone's objectivity. They don't seem to imply that the workaday jury process, as practiced in Arlington and counties like it all over the country, suffers from fundamental flaws needing immediate attention.

If anything, lawyers and judges who spend their lives managing and studying the jury system tend to develop an emotional attachment to it, as did, for example, the criminologist Seymour Wishman, who wrote in a 1983 book about what he called the "halo effect" of jury service: "average people, realizing the importance of their responsibility on the jury, rise to the occasion and perform with such an astuteness and integrity that they surprise even themselves."

I don't think I'd go that far, at least not on the basis of my two- day experience in Moshiri v. Deb. We didn't experience any Henry Fonda-style brilliance or heroism--nor was there a need for any, as is no doubt true in 95 percent of all the cases that come to decision. About all that happened in this minor case was that a group of seven people behaved seriously, attentively and reasonably, and ended up with a decision that reflected common sense.

But I have to say that I went into the courthouse slightly dubious about the whole system and came out more positive than I expected I would. I'm glad I finally got the summons to participate.

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