In a medical malpractice case in NY, if it goes to trial, most likely we will request a trial by jury.
Most attorneys who practice in state court will request a trial by jury.
That means that six members of the community must be selected to sit in judgment and listen to the facts and evidence in your case.

That means that six jurors will have to decide if you are slightly more likely right than wrong that what you are claiming is true. 

In practical terms that means the jury will have to answer a series of questions at the end of your case:

  1. Was your doctor negligent? (Was he careless?)
  2. If yes, was his carelessness a cause of your injury?
  3. If yes, how much money do you give the injured patient for the different types of damages she suffered?

The jury is called upon to decide which set of facts they believe.
Are the facts of the patient more believable or the doctor?

Before starting a jury trial, the attorneys are told by the judge to 'go pick a jury'.
That means that both attorneys are put into a room with about 25 - 30 strangers from the community. We don't know them and they don't know us. These strangers have been COMMANDED to appear in court to serve their civic duty. Jurors who fail to appear in court for jury duty are threatened with fines and the possibility of imprisonment.

During jury selection, there is no judge in the room.
There is nobody supervising the attorneys and these prospective jurors.
You should know however that before the lawyers ever step foot into the jury selection room, the lawyers have been told how much time each one has to talk to these prospective jurors. The attorneys have also been told how many opportunities they have to dismiss a juror they do not like. 

To answer my question in the title of this article, does the judge decide which jurors stay and which ones are excused, the answer for the most part is no. Let me explain...

Each lawyer will talk to the jurors. He will find out personal information about them. Where do you work? What are your hobbies? Have you ever participated in a case like this? Are you closer to the people who feel that doctors can do no wrong?

After each lawyer is done talking with the jurors, the attorneys will go out into the hallway to decide which jurors THEY DO NOT LIKE. As in chess, lawyers must use different strategies to carefully decide which jurors to excuse. They must try to guess which jurors the opposing lawyer will remove, if any. Ideally, an attorney wants to save as many 'challenges' he has and use only if needed to remove a terrible juror.

I might say "I want to excuse juror #2. The rest are fine."
I also have only three opportunities to remove three jurors without giving any reason. This is my first one, which means I now have only two left. Let's see what my opponent does now.

My opponent looks at the jury board and says "I want to excuse jurors #3 and #5."
My adversary also has three chances to remove jurors without ever giving a reason why. Now he has only one left.

In total, we have removed three jurors out of six. In essence, we have DESELECTED the jurors we didn't like.
The remaining three jurors will now be on our jury.

This is important to remember...
We don't actually SELECT the jurors we want.
Instead, we deselect those we don't want and whoever is left is sitting on our jury.

We don't walk into the jury room and decide "I like jurors #1, 4 and 5. They're on the jury now." No, it's not like picking teams in grade school when going out to play kickball during recess.

That ends round one of jury selection.

Next, since we need to fill three more seats, we call up three jurors who are sitting patiently in the back of the room waiting their turn. While asking these three prospective jurors questions, one of them says something that tells me they're a problem for me.

"I don't believe anyone should sue anyone else! He says in a loud and obnoxious voice.
I can try to convince him, but that won't help.
I can try to let the other strangers in the room know that I don't agree with that comment.
I can engage the other jurors by asking them whether they have similar feelings toward people who bring lawsuits.

When the attorneys are done talking to these three new jurors, I tell my adversary I have a 'challenge for cause'.

What does that mean?
It means that I want this particular juror off of our panel. I want to remove him without using up my remaining chances to excuse a juror without any reason. My opponent, the defense lawyer does not agree. He likes this guy (obviously). He'd love this guy on our jury. 

He doesn't agree to excuse him. That means that the attorneys now have a dispute. Since we're at an impasse as to how and whether to remove this offensive juror, the only option we have is to bring it to the judge's attention and ask him to decide.

We ask to see the judge.
"Your honor, I have a challenge for cause. Mr. Jones is a laborer who has said clearly that he doesn't believe anyone injured should bring a lawsuit seeking money as a form of compensation. He thinks cases like these are frivolous and no matter how I tried, I could not convince him otherwise," I say.

What I'm asking the judge to do is to briefly listen to the facts of our dispute. I'm saying that this potential juror is biased and prejudiced against me and my client. He doesn't belong on this jury and I really don't want to use up one of my last remaining challenges to excuse a juror without having to give a reason.

The judge turns to the defense lawyer. "What do you have to say counselor?"
"Judge, I like this juror. He's straightforward and honest. Even though he said he doesn't believe injured people should bring a lawsuit, he promised that he could be fair and impartial and follow your honor's legal instructions at the end of the case even if he personally disagreed with it. That's why I couldn't consent to excuse this juror."

Now the judge must decide.
Can the juror be fair?
Is he biased?
Will he be a problem for the other jurors even though he says he'll follow the law?

If the judge agrees that this juror is a problem, he will remove the juror from this panel and send him back to central jury to await being assigned to another case. If the judge agrees with the defense lawyer that there's nothing wrong with him, then I will have no choice but to use one of my remaining 'challenges' to excuse this juror and boot him from my jury.

The judge only gets involved when there are disputes between the attorneys regarding who will stay and who will be excused. Otherwise, the judge plays no part in deciding which jurors are selected in a medical malpractice case here in New York.

To learn how jury selection REALLY WORKS, I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer