The wrath of God will come down up the juror.

Actually, no.

The Judge's wrath will come down upon the juror and it won't be pretty.

In a civil lawsuit we ask members of our community to sit in judgment on cases involving disputes.

Every case that goes to trial involves a dispute.

Since I have experience with medical malpractice cases here in New York, I'll talk about these types of cases.

However, you should know that this is applicable to EVERY civil jury trial anywhere in the United States.

In a medical malpractice case, the injured patient says "My doctor was careless."

She then says that "His carelessness was a cause of my injuries."

She next argues that "My injuries are permanent."

Her doctor, the one whom she trusted, says just the opposite.

He says "Why are you suing me? I did nothing wrong!"

Then he argues "Even if I did something wrong, so did you!"

Then he argues "If I did something wrong, it didn't cause your injuries."

Then to twist the knife even further he claims "Your injuries are not as bad as you claim."

See the dispute?

He disputes EVERYTHING you are claiming.

He refuses to negotiate.

He refuses to engage in settlement discussions because he feels he did nothing wrong.

So now you have a significant dispute on your hands.

Since your doctor is refusing to voluntarily try and work things out, your lawsuit will proceed forward.

Through the discovery process.

All the way to trial.

After two or three years, your case finally reaches the point where your attorney has been told to go pick a jury.

Your lawyer has exhaustively prepared your case for trial.

You have been prepared to testify at trial as well.

On the day you are to begin your trial, the judge calls the jury into the courtroom.

You will be there.

Your lawyer will be there.

Your doctor's lawyer will be there.

The judge will be there.

The court officer will be in the courtroom.

The doctor whom you sued may also be in the courtroom.

A court stenographer will be in the courtroom to record everything that is said during your trial.

Before your trial actually begins, the judge asks the attorneys, as a formality, whether the jury is acceptable.

Both your lawyer and the defense lawyer stand up and say "Yes, your honor. The jury is acceptable."

Before a single witness is ever called to testify, the Trial Judge needs to talk to the jury.

He needs to give them initial instructions.

He tells them what to expect.

He tells them how to behave.

He tells them what they can and can't do as jurors.

"You are not to speak to the attorneys."
"You are not to speak to the litigants."
"You are not to post anything about this trial on social media including Facebook, Twitter, LinkedIn, Instagram & Snapchat."
"You are not to take photos in this courtroom and post them online."
"You are not to do your own medical or legal research about the medicine or legal issues that arise."
"You are not to research the lawyers in this case."
"You are not to talk to your fellow jurors about this case until I tell you to do so at the end of the case."

These are just some of the preliminary instructions the Trial Judge tells the jury.

He does this to keep the jury fair and impartial.

He does not want them influenced by anything they see, read or hear outside of the courtroom.

He doesn't even want other jurors to make comments to eachother for fear this will influence one or more jurors.

These legal instructions are all good and well, but how does the Judge know if the jurors are following his rules?

There's really only two ways to know.

The first is if another juror learns that a juror has disregarded the judge's instructions.

The other is if one of the attorneys learn that a juror has disregarded the judge's instructions.

It's much more likely that a fellow juror will learn of a problem before one of the attorneys figures it out.

You see, the jury is supposed to police themselves.

In fact, during jury selection, we ask potential jurors if they will follow the Judge's instructions, even if they disagree with it.

We also ask if they'll have the courage to stand up and send a note to the Judge letting him know that one of the jurors is not following his legal instructions. Everyone usually says "Yes."

This way if one of the juror finds out that a juror has disregarded one of the Judge's instructions, that can be brought to the Judges' immediate attention.

Let's say for example that one of the jurors has surreptitiously taken a few photographs of witnesses who testified in your trial.

She now posts those photos along with comments on her Instagram or Snapchat account.

Her friends who follow her on those accounts start posting comments on the photo.

"He looks like a turd," says one.

"He's handsome! I'd believe anything he has to say," says another.

"She looks like a liar to me..." says another.

The photos and the comments are dangerous.

Dangerous to the juror who posted them.

Dangerous to the other jurors in the case.

When I say 'dangerous', I don't mean in a physical way.

I mean they have the potential to sway this juror.

They have the potential to sway the other jurors.

That's dangerous.

None of the litigants, participants to the lawsuit, want the jurors exposed to comments that might influence them one way or another.

That's exactly why the Judge tells the jury at the very beginning of the trial that they are not to post anything on social media about the trial.

Getting back to the example I mentioned...

The next day, this juror returns to court.

In the back of her mind she keeps thinking about what woman expert.

One of her followers on Snapchat she respects greatly.

She's an influencer on social media.

If she says this woman looks like a liar, then maybe she is.

That comment and her social media influence may cause this juror to believe that this woman is a liar.

During jury deliberations, this juror might have a stronger opinion about this expert's credibility than if she had not read the comment on her Snapchat feed.

There are repurcussions for disregarding the Judge's instructions.

The juror might think it's an innocent transgression.

"What's the big deal? I just wanted to tell my friends and followers what I was doing in court."

That type of thinking is all too common today.

A juror may minimize and trivialize the Judge's instructions.

That could lead to problems later during jury deliberations.

Let's say that a juror has learned that a fellow juror has disregarded the Judge's instructions.

He notifies the court officer that he has to speak to the Judge.

The Judge agrees to speak to him privately.

This juror tells the Judge that Juror #3 has clearly violated his legal instructions.

She posted comments and photos of witnesses on her Snapchat and Instagram accounts.

The Judge is furious.

Not at this juror, but the one who disregarded what he told them.

He thanks this juror for coming forward.

He says "Please don't mention this to the other jurors. I'll take care of it."

The Judge then calls the attorneys into his private chambers and tells them of this interaction with the juror.

He orders the court officer to bring juror #3 to his chambers for a chat.

The attorneys are present when juror #3 is brought in.

She looks guilty as she walks in and appears confused about why she was brought in to speak to the Judge.

"Were you present when we started this trial?" the Judge asks.

"Yes," the juror answers.

"Were you here when I gave preliminary instructions to the jury?" the Judge asks calmly.

"Yes," she answers.

"Did you understand my instructions?" the Judge asks firmly.

"Yes," she says.

"Did you hear me say not to post anything online about this case?" he asks accusingly.

"Yes," she responds.

"Can you explain to me why you disregarded my instructions and posted photos and comments on your Snapchat & Instagram accounts?" the Judge asks loudly.

She pauses. 

She realizes she's been caught.

She tries to make some feeble excuse.

She tries to minimize what she did.

The Judge erupts in anger.

"You ruined this case! You destroyed the opportunity for a fair and impartial trial! All because you were selfish and felt it was important to disregard what I told you!"

"Did you tell the other jurors that you posted this information?" he demands to know.

"Yes, this morning," she whispers.

"You are dismissed from this trial immediately! I don't ever want to see you back in this court house! You're lucky I don't fine you and sanction you for your conduct. Get out of here now!" the Judge yells.

The Judge now has a problem.

The other jurors know this one disregarded his instructions.

He can give them a remedial instruction that reminds them again of what they can and cannot do.

He can give them a lecture on why it's so important for jurors to follow his instructions.

Or, he can dismiss all the jurors and start this trial all over again.

Only four witnesses have testified so far.

It's been only a few days of trial.

The Judge tells the attorneys what options he's considering.

He asks for their input.

Both attorneys cannot agree...even on this.

One wants a mistrial.

The other wants to keep going.

That makes it more challenging for the Judge.

The Judge decides that the attorneys and the court have invested plenty of time on this case so far and this deviation from the court rules have not dramatically influenced the jurors. He's going to have a stern discussion with the jury.

He's going to remind them of the harm they will cause if they disregards his instructions.

He's going to remind them of their civic duty and appeal to their sense of fairness and integrity.

He's also going to randomly select one of the alternate jurors as a main juror now.

This curative instruction should suffice to keep the jurors in line.

If not, then the other jurors should pipe up and notify the court that a juror has again disregarded the Judge's instructions.

To learn what happens if a juror refuses to follow the Judge's instructions at the end of a trial, I invite you to watch the quick video below...




Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer