What Will the Jury Think? Case Evaluation Before the Settlement Conference
We don't often get to hear what jurors actually do and say during deliberations. Even when you poll them after the verdict comes in, you often can't trust that you're getting the straight skinny.
I was talking to an old friend recently about the way jury verdicts can act as reparations of one sort or another if the issues raised by trial are racial or gender or nationality-based. I've also written elsewhere about the effect of past racial injustices on the settlement of a wrongful cemetery practices case.
My friend was good enough to reduce his jury experience to writing. I provide it here for you without commentary.
I was chosen for jury duty while working for a Bank in corporate communications in San Francisco's financial district. So I arrived at the courthouse in a suit and tie and probably looked and sounded pretty conservative.
I was chosen as one of the twelve jurors to decide a personal injury lawsuit. The plaintiff was a wiry little black guy suing a big shipping corporation. A restraining rope had snapped while he was loading cargo onto a ship at the docks somewhere along the Bay early one morning. It caused him to slip and fall and badly hurt his hip.
On the witness stand, the Plaintiff revealed that he and his fellow workers were in the habit of taking a few healthy nips from a bottle of liquor as they drove to their 6 A.M. shifts. It seemed that he and his fellows were generally somewhat drunk nearly every morning as work began.
The defense attorney made it pretty clear that though the snapping of this important rope hadn't been the Plaintiff's fault, that he wouldn't have injured himself, wouldn't have fallen at all, if he'd been sober.
The jurors were almost all white and most were staunchly middle class. During deliberations, two of the jurors harangued the rest of us about the contempt they held for anyone who got drunk in the morning. A couple of other jurors were really down on the guy and talked about him as if he were just dirt.
(below: Berkeley in the Sixties)
Now, I know it isn't cool to drink the way he did, and I wasn't a long-haired kid anymore, learning to play the blues and romanticizing the Black experience as I had during my days at Berkeley in the sixties. But I couldn't help empathizing with the guy.
I thought that the forewoman might not talk so high and mighty had someone made her play Rosie the Stevedore for a day. If I were Black and in my forties and this is what I had to do every morning when everyone else was still asleep, I'd pretty f'&^%'ing likely be drinking, too. Or at least I could imagine it.
Plus, in winding up, his attorney, a shaggy-haired redheaded guy with a big Sixties-style/pirate mustache was appealing to me, especially compared to the insurance company's guy -- kind of stiff in his suit and wingtips. Plaintiff's attorney said something in his closing argument about how you didn't need a weatherman to know which way the wind blew. You can imagine the delivery. I don't know who he thought he might appeal to with that line since I certainly hadn't given away my Haight-Ashbury hippie past. But maybe he saw straight through me.
(Subterranean Homesick Blues from Don't Look Back)
Whatever his subjective state of mind, he got to me.
So in deliberations, after a whole round of dismissive opinions about this scrawny little black drunk, I stood up and gave a little talk about how so many black people wound up in the Bay Area during WWII to work in the Navy yards and a community grew (Hunter's Point outside the City, The Fillmore within it). About how life got better and then it got worse and people struggled, did the best they could, and sometimes substance abuse was a mistaken, if common, approach to bearing up. Not admirable, but understandable. Systemic, maybe, more a part of life that the rest of the jurors just couldn't imagine.
Then I told them I didn't think they were being very generous in spirit. I think that last bit got to them, especially since I delivered my little speech humbly, not arrogantly. Kind of soft and musing, as if I were thinking out loud.
That turned a couple of people around, enough to sway the decision in the Plaintiff's favor. It also helped increase the amount the jurors were willing to award the guy for his injuries. In hindsight, I'm pretty sure I was displacing a little of my resentment against the bank I was working for in urging the rest of the jurors to give the Plaintiff a decent sized award. That and a retro-hippie era righteousness I should have outgrown by then with a bit of rage thrown in against my own self for being so feckless. All of that fed into making a nice award for the guy and his mustachioed counsel, while flipping the bird to the insurance company's suits.
If it happened again today, I'd be more mature about it. I assume I'd weigh the evidence more dispassionately and wouldn't have the same bleeding heart for the Plaintiff or rage against the insurance company.
As I left the courtroom, though, I was hoping that the verdict would make the shipping company a little more careful next time.
It felt like justice.