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law & order san francisco

Good time on a California jury

For the last three days, I served on a jury in a civ­il tri­al in San Fran­cis­co Supe­ri­or Court. It was a per­son­al injury case stem­ming from an auto acci­dent on the Bay Bridge in 2002. The plain­tiff sought cash for phys­i­cal and men­tal suf­fer­ing, incon­ve­nience, loss of enjoy­ment of life, and about six oth­er things. I had some idea of how total­ly jacked Cal­i­for­nia per­son­al injury law is. After see­ing the way that this case played out, I am shocked and depressed by it.The facts. There was no ques­tion that the defen­dant (a round-ish kid from out­side Sacra­men­to) rear-end­ed the plain­tiff (an Asian lady from El Cer­ri­to). The ques­tion was: Was there enough evi­dence of actu­al harm to award some kind of mon­ey? The plaintiff's car was unharmed by the col­li­sion. She drove home imme­di­ate­ly after­ward. An expert wit­ness argued that the col­li­sion could not have been more than a slight bump. In my opin­ion, the plain­tiff offered no evi­dence to sup­port her argu­ment. She claimed var­i­ous types of harm: 18 months of back prob­lems, inabil­i­ty to have inti­mate rela­tions with her hus­band (ouch), gen­er­al fam­i­ly dis­so­lu­tion. But her tear­ful tes­ti­mo­ny was the only evi­dence of her suf­fer­ing. There was no tes­ti­mo­ny or depo­si­tion from her doc­tor, no med­ical records, no police report, no tes­ti­mo­ny from her hus­band or kids; more­over, she con­tin­ued to work imme­di­ate­ly after the acci­dent and admit­ted that she missed no work — includ­ing busi­ness trips to Chi­na and Seat­tle — as a result.Our task. We had a total of four ques­tions to answer; but if we ruled "no" on any of the first three, our work was done. Case closed. The first ques­tion: Was the defen­dant was neg­li­gent? If we agreed he was neg­li­gent, ques­tion two: Was the plain­tiff harmed? If so, ques­tion three: Was the defen­dant a sub­stan­tial fac­tor in the harm? Final­ly, if he was: How much mon­ey should be award­ed for the harm?1. Was the defen­dant neg­li­gent? Umm, yeah. The guy rear-end­ed her. Hard to say he wasn't. Still, you had to feel bad for him. He was work­ing at a piz­za place at the time of the acci­dent, and you had to know that he was fear­ing some kind of huge ver­dict. Nev­er­the­less, his tes­ti­mo­ny was uncon­vinc­ing. A "rea­son­ably care­ful" per­son would not rear-end a car in that sit­u­a­tion, even if he was sneez­ing, as he claimed. About half the jury ini­tial­ly want­ed to say that he was not neg­li­gent, but the rest of us had a hard time rul­ing that he wasn't. He wasn't pay­ing atten­tion. A rea­son­ably care­ful per­son would have been pay­ing atten­tion. After 10 min­utes of dis­cus­sion, we came to a deci­sion: 12 yes, 0 no.2. Was the plain­tiff harmed? This is where it got testy. I per­son­al­ly believed that if we said "yes" to this, we were going to have to award dam­ages. So I argued (at length) that she wasn't harmed, and at first 7 oth­er jurors agreed. We only need­ed one more to turn to our side to win — in Cal­i­for­nia, you only need 9 out of 12 jurors to agree on a point to come to a deci­sion. Unfor­tu­nate­ly, one of the char­ac­ter­is­tics of harm was "incon­ve­nience." The minor­i­ty argued — per­sua­sive­ly enough, as it turned out — that the fact that she had to stop on the Bay Bridge dur­ing crazy week­end traf­fic was enough to say that she was harmed. Even­tu­al­ly, they had the required 9, includ­ing three oth­er young guys who I thought were going to be faith­ful allies (they were from the Mis­sion, Upper Haight, and Potrero Hill). Inter­est­ing­ly, the oth­er two who believed that she wasn't harmed were women: one was an old­er Asian lady (Sun­set), and anoth­er was a young woman from the Mari­na. Final score: 9 yes, 3 no.3. Was the defen­dant a sub­stan­tial cause of the harm? It was real­ly hard to say "no" to this if you said "yes" to the above ques­tion because of incon­ve­nience. I start­ed to get real­ly ner­vous that we were going down a path where we were going to award her some mon­ey because she got bumped on the Bay Bridge, and claimed to have incurred all sorts of hard­ship. Again: 9 yes, 3 no.Aside: It was pret­ty clear that the acci­dent was trau­mat­ic to the plain­tiff; she cried through­out the tri­al, and her ren­di­tion of the acci­dent made it sound pret­ty scary. It hap­pened over the week­end, so the traf­fic was crazy, and the defen­dant han­dled him­self bad­ly. BUT, she didn't file a suit until two years lat­er, didn't keep receipts for med­ical treat­ment, didn't have any tes­ti­mo­ny from doc­tors or fam­i­ly mem­bers. With­out any of this, it seemed insane, real­ly, to say with any cer­tain­ty that she was harmed. It's not like it's hard to pro­duce this evi­dence. C'mon!4. How much is the plain­tiff enti­tled to for her mental/physical suf­fer­ing? At this point, the fore­man used the white­board to write out each ele­ment of phys­i­cal and men­tal suf­fer­ing (loss of enjoy­ment of life, incon­ve­nience, etc), lay­ing out a frame­work where we would agree on a val­ue for each thing. In Cal­i­for­nia, juries are giv­en no guide­lines for deter­min­ing the award; we're left to our own devices.The fore­man said, "I'm just going to throw out a fig­ure. $5000." Upper Haight guy said, "$3000." Anoth­er two women chimed in with $3000. Imme­di­ate­ly, there were four peo­ple who want­ed to award mon­ey for her unsup­port­ed claims. Luck­i­ly, Potrero Hill and Mis­sion guys were even more pas­sion­ate than me about this, and they imme­di­ate­ly artic­u­lat­ed an argu­ment that I hadn't expect­ed: that incon­ve­nience on the Bay Bridge has a mon­e­tary val­ue of ZERO dol­lars. The three Asian ladies imme­di­ate­ly agreed, as did the Mari­na lady.The fore­man kept propos­ing fig­ures — "Okay, how about $2000?" — but Potrero Hill guy inter­ject­ed: "Hey, we've got 8 peo­ple who believe that she shouldn't get any­thing. You're in the minor­i­ty. You need to come to us." Even­tu­al­ly, we were argu­ing about whether or not to award $250. Final­ly, a lit­tle after 4pm, the fore­man cracked: "Okay, fine. Zero dol­lars." And jus­tice was served: 9 $0, 3 $250.But the depress­ing thing was how easy it was to assign mon­e­tary dam­ages, how much the log­ic of the law seemed des­tined to lead to it. Upper Haight guy was brain­washed by it. Even though he could nev­er artic­u­late a prag­mat­ic rea­son why she should get any mon­ey, he kept refer­ring to the jury instruc­tions and say­ing, "I'm just fol­low­ing these rules. She was incon­ve­nienced, and now we have to assign a val­ue to that." The fore­man was sym­pa­thet­ic — he had fam­i­ly mem­bers who had been in a much worse posi­tion and got no mon­ey — which he acknowl­edged was not a valid legal rea­son, but it took him an hour before he aban­doned this. As the ver­dict was read — neg­li­gent, harmed, sub­stan­tial cause of harm — the defen­dant looked scared, and his attor­ney looked depressed. Then, the big fat $0 of dam­ages, and every­thing changed. The plaintiff's attor­ney slumped, and the plain­tiff began cry­ing again. The defen­dant was relieved, and the judge actu­al­ly looked relieved as well. Jus­tice was served. Bare­ly.