As everybody prepared for the plaintiff’s opening statement, I could see that 7 of the 12 jurors had their note pads out and were ready to take notes. Good.

There were several tables in the courtroom. The plaintiff, her daughter, and the Grinch sat at the table closest to the judge’s bench. There was a three foot gap between their table and our table. Vinny sat at the end of our table next to the plaintiffs. Louise sat next to me. The other defendant physician – the on-call medical resident taking care of the patient – sat on the other side of me. His attorneys sat next to him. A smaller table formed an “L” shape at the back of the courtroom. Hospital attorneys and a hospital representative sat on the end.

The Grinch started strong out of the gate by misstating several facts in the case. I had the charts committed to memory. I could rattle off the pages that showed he was misrepresenting things. Less than one minute into the trial and I already felt like standing up and asking him if we’re talking about the same patient.

He made statements like “the facts can only show that Dr. WhiteCoat should have called the consult sooner,” and “there was no question that the patient was suffering from this disease – blood was oozing from his abdomen.” Lying bastard.

I read up a little about trials before all this went down. According to what I had read, attorneys are not allowed to make arguments in the opening statement. They’re limited to factual statements only.

“Without immediate treatment, this disease will undoubtedly kill the patient.” Whaaat?!?! Didn’t everyone remember the juror that was excluded when he had the same type of symptoms and did just fine? How much more argumentative can you get? I kept looking over at Vinny. He just sat there taking notes. Blank stare. Poker face. No objections.

Then I looked at Louise. She had her hair in a bun and was all prim and proper in her dark blue blazer and skirt. She had a poker face as well. She intermittently took notes on a note pad with her chewed-up pen, but was apparently more interested in doodling a picture of a flower at that point.

I leaned over and asked “Are we going to do anything about this argument crap?”

She put her pen down firmly on the pad, looked back at me, put her hand over her mouth and whispered “Doc-tor … You have to leave this in our hands now. You have to trust us.”

The little voice in my head said “Yeah? Bite me. You have Starbucks breath and I hate it when people call me ‘Doc-tor.’” I kept my mouth shut.

Apparently my comments got to Louise, though, because she objected three times after that and all three objections were sustained. On the third objection, the judge told the Grinch to “knock it off.” The objections threw the Grinch off his game.

“The family thought the patient looked horrific. They knew that something was wrong even before Dr. WhiteCoat did.”
“Dr. WhiteCoat chose not to consult a surgeon, but instead asked a second-year resident to come and help him figure out what was wrong with the patient.”
“The most appropriate consultant was a surgeon, not a doctor in training. But the surgeon was one of the last people called.”

I leaned over and looked at Vinny again. He just sat there taking notes in his notebook. I was getting pissed … to the point that I could feel my face getting red. Louise stopped doodling and looked at me with the kind of stare your mother uses when she’s mad at you and she doesn’t want to say anything to embarrass herself. I stared back at her for a second, gave her a little fake smile, and sat back in my seat.

“Multiple medical experts will tell you that the standard of care required an immediate surgical consult when the patient arrived in the emergency department. When he arrived, the patient was ‘salvageable.’ Because of Dr. WhiteCoat’s delays, there was no chance to save him.”

I leaned over to the codefendant physician and whispered “where is he getting this stuff?” Louise leaned over to me and whispered “Stop it.” She hesitated a second, looked me in the eye again and said “STOP… IT….”

“This was not one of those cases in which the doctors can just say ‘We’ll take care of this tomorrow.’”
“Had there been an early surgical evaluation, the patient would still be here today.”

I sat up in my chair after the plaintiff attorney said this. Finally, Vinny objected to the statement as being argumentative. The judge sustained the objection. Great. He’s awake.

“The evidence will overwhelm you in favor of the plaintiff,” the Grinch concluded. “As you listen to the evidence in this trial, ask yourself one question — why wasn’t the surgeon contacted when the patient arrived at the hospital?”

The Grinch sat down at his table. Vinny twisted his head to the side in an apparent attempt to crack his neck. Then he fumbled with some papers and stood up.

“Now … you will learn the rest of the story. I’m going to tell you all the things that the plaintiffs lawyer didn’t tell you. You will learn that the patient’s disease was an extremely rare disease … doctors may not see one case in their entire career. You will also learn that the patient was too unstable to be taken to surgery that night. You will learn that another hospital mismanaged the patient’s care by misdiagnosing his condition twice before he ever came to see Dr. WhiteCoat in the emergency room ….”

Vinny went on for about 15 minutes contradicting most of the things the Grinch said. He repeatedly referred to the notes he had taken while sitting at the desk, saying that “Mr. Grinch told you this, but the facts will show that wasn’t the case. Instead, the facts will show this.”

I liked it. I think the opening statements gave Vinny some credibility and made the Grinch look like he was trying to mislead the jury.

After opening statements were done, Vinny pulled me aside and chastised me.

“Don’t act like that, you hear me? You want the jury like you. You know they’re going to like the plaintiffs because their family member died. Sit there, smile, and look friendly. We clear?”

“Yeah … crystal.”

See previous posts in this series here.

After the potential jurors got the chance to sit and stare at me, it was my turn to size them up. I wanted to get a good set of jurors, but I had no idea what to look for.Vinny helped clue me in.

There are several things to be considered. Attorneys have to try to guard against bias. Some jurors may have hidden biases that the attorneys try to discover through questioning. Some jurors also have very strong personalities and may influence other jurors. One person’s will could possibly become the will of many because of their strong personality or because of their knowledge regarding a subject. Those types of jurors are called “superjurors.”

Jurors can be excluded either for cause or by preemptory challenge. Being excluded for cause means that the juror has a pre-existing bias and the judge decides that the juror would not be impartial in deciding the outcome of the case. If a juror cannot be excluded for cause, then each side has several preemptory challenges where a lawyer can exclude a juror for no reason. Once all the preemptory challenges are used up, you have to take what you get, so you have to use your preemptory challenges wisely. Part of the game is seeing what order the potential jurors will be presented in. If a lot of good jurors appear early in the course of voir dire, then you try to save your preemptory challenges for later to exclude the potential bad ones.

The potential jurors all had to fill out a questionnaire before they came to court. Attorneys for both sides had copies of all the cards. Vinny told me that in complex medical malpractice cases like this, it was his experience that less educated jurors tended to award money to plaintiffs based on sympathy instead of basing a decision on the facts of the case. While we waited for the judge, Vinny flipped through the cards. One woman wrote that she was employed as a “watres.” Vinny set her card to the side. Another wrote that he was an “employe.” Vinny set his card to the side, too.

Before the questioning took place, a couple of jurors said that they could not promise they would be unbiased because of problems they had with doctors in the past. They stated that they would try to look at things fairly, but that they could not promise they would be unbiased. They were excused. Take note, all you people trying to avoid jury duty.

Then the lawyers began to go back and forth asking sets of three potential jurors the same questions over and over again. One of the jurors fell asleep and began snoring. He sounded like a door creaking until another juror kicked his chair from behind. He sat up with a jolt. Several people giggled.

One of the first potential jurors called looked promising. His wife was a doctor. He also had a close friendship with an expert witness, and he said that his relationship with the expert witness relationship could influence his decision. The judge bounced him. Damn.

Mrs. C. was a woman in her fifties. Her husband was involved with multiple workers compensation claims. She seemed very upset about those suits. Almost as if she was biased against plaintiffs. Her sister was a nurse. She ended up being excluded.

Mr. S was a man in his fifties. He was a single business owner and a sole proprietor. He had no lawsuits. Several of his friends were police officers and he stated that the fact that the patient was a police officer may influence his decision. He had a pre-existing bias towards resident physicians, stating that they should not be in charge of patient care. Seemed very opinionated. We excluded this one.

Mrs. M. was a 26-year-old corrections officer at the local prison. During most of the initial questioning, she played with her fingernails and did not pay attention to anything that was going on in court. Vinny excluded her.

Mr. L was a 40-year-old restaurant manager. His wife was one of his waitresses. His brother was recently hit by a car and is involved in a lawsuit. His father died and he believes that it was due to medical malpractice. Fortunately, the judge excused him because of the potential bias.

Mr. F was a 62-year-old retired newspaper editor. His son was a photojournalist. He had no previous jury experience. He has a friend who is an orthopedic surgeon. When asked about the current healthcare setting, he stated that he wanted malpractice limits. The plaintiff excused him.

Mr. L was a 50-year-old telecommunications specialist. His son was a minister. He had a problem with the surgery that was performed on him and getting insurance to pay for it. Eventually the doctor who performed the surgery paid for the remainder of his charges. He seemed very happy with doctors although he was nervous when being questioned. Seemed like a good juror for our side, but the plaintiffs got rid of him.

Mrs. B. was a 66-year-old retired video producer. Now she owns a studio with her husband. Her daughter-in-law is an emergency physician in Milwaukee. Several relatives are physicians and a brother-in-law is a surgeon. Another great juror that was excluded by the plaintiff.

Mrs. P. was a 60-year-old homemaker. Her husband is a tax attorney in her son is a real estate attorney. Her son and daughter-in-law both pediatricians. She was previously a foreperson in a jury with a case involving personal injury. Her son had been involved in a lawsuit against his law firm that was “thrown out of court.” On the surface, she seemed like a good juror, but I had bad vibes about her. While she was sitting in court, she repeatedly looked over towards the plaintiffs, almost as if she sympathized with them. A further questioning, she revealed that she had been the victim of medical malpractice by having a fracture that was missed by an emergency physician. Later her primary care physician caught the fracture and treated it appropriately. She said that she was “not angry” afterwards. She had many interactions with medical residents and had “no problems.” This just seems like a woman who has a hidden agenda. I told Vinny that I did not want her on the jury. The plaintiff asked for a meeting in the judge’s chambers. When everyone came back, she was excluded. Good.

Another Mr. B. came right afterwards. He was a 60-year-old guy who owned a heating and air-conditioning business. He had been sued several times in the past due business contracts. He stated he had a big problem with the insurance industry. “Every time someone does something, they get sued. My insurance is through the roof.” Another one of the plaintiffs bullets gone.

Mrs. K. was a 45-year-old special-education professor. She said that she had several cousins and friends in the medical profession and that she empathized with physicians. She stated that her feelings toward physicians may impact upon her impartiality. The judge rolled his eyes and said “Fine, you are excused.”

Mr. C. was a retired electrician, 55 years old. His father died during surgery and the surgeon taking care of him was a resident. He was excluded by the hospital.

Mr. S. was a very interesting potential juror. He was 65 and was a retired manager for any production company. His sister is a nurse. He states that he has a problem with nursing care because “they all speak foreign languages.” About 30 years ago, he said that he had a problem very similar to the plaintiff’s problem and healed up just fine from it. Said that the doctors did a good job at treating him for it. I leaned back with a smile on my face, folded my arms, and looked over at the Grinch. He looked back at me and I nodded my head at him. Needless to say, this juror was excused after another meeting in the judge’s chambers. I wrote down his name and all the stuff he said, so that when I testify, I will make sure to bring him up as an example to show how some patients can have the exact same symptoms as my patient had and can do just fine.

We broke for lunch. I went off on my own and ate in a little greasy spoon restaurant near the courthouse. Called my wife and told her how things were going. Wished she was there with me.

Mrs. M. was a housewife and former pediatric occupational therapist. Her husband was a computer consultant. She had been on two juries. She conveniently brought a note from a doctor saying that she was just started a new medications for migraine headaches and that those medications may cloud her judgment. Good one. The judge excused her.

Mrs. P. was a 50-year-old secretary. She stated that she was admitted for five weeks at the same hospital being sued and that they “saved her life.” She didn’t remember much about her emergency room experience. Wouldn’t that be weird if I was the one who treated her? The plaintiff excused her. He is running low on bullets.

Selection continued on like this for a couple more hours. Eventually, the full jury was selected, but we needed to pick several alternates. Almost there. Vinny said that both sides were running low on their preemptory challenges.

A note to self: Eat bland food for lunch. During lunch, I had an omelet with sausage in it. By the time we were up to picking alternates, my stomach was singing the Star Spangled Banner. Hopefully court will get out for the day before the omelet makes it to the other end. Otherwise, the whole courtroom is in trouble. Wouldn’t make a very good impression on the jury, I’m sure.

Mrs. L. was a 56-year-old clinical therapist with the social services department. She was very opinionated. She stated that she had been in jury duty one time before in the past and “felt clueless.” Bye-bye.

Mrs. C. was a 48-year-old housewife. She was Spanish and stated that her English was not so good. When the attorneys asked her about the plaintiff, she began crying and stated that she felt so sorry for this woman losing her husband. She stated that she was a “very sensitive person.” She said that she would try her best on the jury. After several go arounds with the judge, she was excluded.

Mr. B. was a 45-year-old systems analyst. He reminded me of Jerry Lewis. The mother of one of his friends died from overmedication after surgery. His father-in-law died from a heart attack. One of the things I noticed about him was that when he went to the bathroom, he purposely walked behind the plaintiff and defense tables with all of the paper sitting around and was snooping through what he could see on the tables as he walked by. This nosiness bothered me, especially since it kept happening. I did not especially want him on the jury, but he was chosen as the second alternate.

Jury selection is finally complete. Pretty happy with the makeup.

Now we get down to business.

See previous posts in this series here.