You might think this series of questions is unusual.
Actually, it represents just a few questions I ask during jury selection in a medical malpractice case here in New York.
You see, when the judge tells us to go pick a jury, the opposing attorneys go downstairs to the jury clerk.
We tell the clerk that the Judge sent us to pick a jury.
We then get assigned to a windowless room with about 25-30 chairs.
There's usually one or two tables for the attorneys to sit at.
On one of the tables sits a large round rotating basket with a handle and a little door.
When the jury clerk brings 30 potential jurors into our windowless room, we now have an opportunity to chat with these people.
The jury clerk hands us little perforated white cards with the jurors names on them.
We will dump those cards in the rotating bin, close the door and give it a spin.
Then, one attorney will reach in and randomly grab six cards.
Those people will be called up to sit in the first six empty seats.
We will talk to these six people first.
It's important for the other people in the room to pay attention to the comments and questions being asked.
Why?
Because there's a good likelihood that one or more of these first six potential jurors are not right for our case.
In that instance, either they will excuse themselves or one of the attorneys will excuse them from our jury room.
You should know that if a potential juror is excused, they're not excused from jury duty.
Instead, they go back to the main jury room filled with hundreds of other people waiting to be called to serve on a trial.
Another point I should mention...
The cases I'm discussing here involve civil trials.
That means there is no prosecutor.
There are no criminal charges being brought.
Nobody is going to jail.
These cases involve improper medical care by a doctor or hospital staff.
More commonly, that's known as medical malpractice.
These cases involve accidents including trip and fall cases as well as car accidents.
These cases involve the untimely and wrongful death of someone.
These cases involve an injury caused by someone's carelessness.
Now, getting back to the headline, you need to assume this is a medical malpractice case.
We are tasked with selecting six members of the community who tell us they can be fair and impartial.
But how do we really know if they're fair and impartial?
Do we hook them up to lie detectors during jury selection?
No.
Do we have the ability to see into their mind?
No.
Can we use medical imaging to test the credibility of these potential jurors?
No.
The reality is that we have to take them at their word.
More or less.
You see, the attorneys who are conducting jury selection will have to pick and choose which jurors they like and which ones they don't.
Many times, based on body language and answers to our questions, we form opinions about jurors.
Are they likeable?
Are they prejudiced?
Are they leaning in favor of one side or the other?
Is one a little closer to those people who believe that doctors can do no wrong?
Or is one a little closer to the people who believe that all doctors should be held accountable for their actions?
If I were to ask a room of 30 strangers if anyone in the room was prejudiced, how many people do you think would raise their hand?
Nobody.
Even if they were biased or prejudiced, nobody will admit to a bunch of strangers that they harbor prejudices.
On the other hand, if I begin to ask them questions focusing on whether their beliefs are a little closer to those who ___________ (fill in the blank), then I can begin to get a sense of where they are on the spectrum.
During jury selection, my goal is to learn who these jurors really are.
Do they hate people who bring lawsuits?
Do they think that most medical malpractice lawsuits are frivolous?
If so, that could be a dangerous juror for me and my injured client.
Do they think that many civil verdicts are too high?
If they were to sit on a jury and reach a verdict, is there any limit in which they could not compensate an injured patient above that amount?
Let's get back to the headline of this article.
We know that patients often trust their doctors.
We trust them to do the right things for us.
We know and understand that doctors are human.
We sort of understand that they can make mistakes too.
We put our lives in our doctor's hands.
We expect them to be perfect.
We also know that most doctors do right by their patients.
They don't wake up in the morning and say "Who can I harm today?"
Unfortunately, there are instances where a doctor is careless.
There are instances where he may inadvertanly violate the basic standards of medical care causing a patient significant harm.
In order for the jurors to recognize that their doctors are infallible, it's important to have them recognize this possibility.
"Mrs. Jones, would you agree that some doctors are excellent at what they do?"
“Would you also agree that there's some doctors who are good at what they do?”
“Can you agree that there's some doctors who are just okay?”
“Would you agree that there's some doctors who are less than okay?”
“Would you agree that there are some doctors who are just plain awful?”
A potential juror will admit each one of these statements.
It gets them to recognize that not every doctor is excellent and perfect.
It is also important for them to recognize that we are not accusing doctors as an entire profession of being incompetent.
That would be unrealistic.
Instead, it's important to get these potential jurors to recognize that the doctor who is being sued in this case may be a good person.
He may in fact be a good doctor.
He may be likable.
He might be sympathetic.
But it is critical to show that at a particular time, on a particular date, this doctor violated the basic standards of medical care.
As a result of those departures from good and accepted care, his patient, my client, suffered permanent and irreversible injury.
Our goal is to focus on specific instances where his treatment was inappropriate and caused harm.
Once a juror has acknowledged that doctors are not perfect and that some are better than others, it then becomes important to inquire about their beliefs.
“Mrs. Jones, do you believe that an injured patient has a right to bring a lawsuit against a doctor if she believes her doctor was careless and caused her injury?”
Every person in New York has a legal right to bring a lawsuit seeking money as compensation for all the harms, losses and injuries they suffered as a result of someone else's carelessness.
In a medical malpractice case in New York, we must have a medical expert confirm that (1) there was wrongdoing by the doctor, (2) that his wrongdoing was a cause of your injury and (3) that your injury is significant or permanent.
Here's a startling statistic...
Patients who bring lawsuits against their doctor and hospital staff are often settled about 95% of the time before trial. Of the remaining 5% of cases that go to trial, the majority are won by the doctors and hospitals. That's a very significant number.
Why is that so high?
It goes back to the fact that jurors like their doctors.
They trust them.
That's why it's so important to probe if a juror has certain beliefs that may cause them to lean in favor of the doctor or hospital before the trial even starts.
For example, if a juror tells me that they think it's disgusting when a patient brings a lawsuit seeking money, do you think that person would be an ideal juror to sit in judgment in this case?
Do you think he could ever be favorable to the injured patient who is seeking justice?
Unlikely.
What about a potential juror who has previously sued her own doctor and was successful in obtaining compensation for her injuries?
Do you think the defense attorney would like to have her as a juror sitting in judgment of the doctor or the hospital?
Unlikely.
To learn even more about jury selection, I invite you to watch the quick video below...
