Almost jury duty

I have been in a jury pool since September 1.  They call it the "Fall" term but this jury pool lasts until February 29.  Fall and Winter?  I thought that was a long time until the Flathead Clerk of Court said Monday that Montana law sets jury pools at 1 year: September 1st through August 31st.  Really?!!   The Clerk said Flathead doesn't follow that law and only goes for six months.  When I was in a jury pool years ago in Minnesota the term was two months.

Well... Monday I had to report for jury selection.

The clerk of court was selecting jury members for two court cases, an estimated three day trial and an estimated seven day trial.  I was in the selection for the seven day trial.  Oh joy.

I am not sure the defense attorney were the ones listed on the court calender.  The defense team consisted of two people and one of them was a young woman.  She was the defense lawyer who questioned the potential jury members.

I didn't count, but it appears that fifty people were in each trial's selection pool.  The clerk had us all together in court room #3 for orientation and we barely fit.  Some people has to sit in the jury box as there were no more benches to sit on.   She went over the basics of jury pools and the selection process.  That is when I learned we were lucky to only be in the jury pool for six months.

If a person serves on a jury they they are done for this term.  After being called twice and not selected, then they are done for this term.

We are paid mileage at 55 cents mile each day.  When called for jury selection we earn a whole $12 - a day.  If we serve on a jury our pay increases to $25 a day.  Woo hoo.    That's not even minimum wage.  Jurors should be paid at least minimum wage for doing more than minimum wage work.

Once the overview finished the three-day jurors were moved to their court chamber and we began our selection for the seven-day trial.

We were to report that day before the 9:15 am jury pool orientation.  Jury selection was to begin at 9:30 am.  With so many people having to sign in we didn't start orientation until 9:25 am.   The selection process did not begin until close to 10 am.

The judge and lawyers entered the court room and Judge Lympus introduced the lawyers and court personnel and spoke generally about the process.  He promised the trial would not last more than seven days since if the trial went to eight days it would be the day before Thanksgiving and people do their traveling then.

Once a court official called everyone's name to make sure they were there, 20 people were called to sit in front of the courtroom for questioning.  People were selected at random to be in the jury pool and this same random order was used to call the 20 people up to the front of the room to sit in the jury box (14 seats) and temporary chairs (6) in front of the jury box.

I was in the first 20 names called to the front for questioning.   Oh, joy.

The questioning process, which lawyers refer to by the French term, voir dire, is to select a fair and impartial jury.  Judge Lympus did not conduct this process, instead letting a plaintiff and a defendant lawyer do all the questioning.

Traditionally, lawyers did almost all of the voir dire questioning. However, many judges have come to believe that lawyers take up too much time and try to persuade jurors of the merits of their cases rather than simply select a group of impartial jurors. As a result, today many judges conduct most or all of the voir dire questioning.

Judge Lympus's lack of involvement in the questioning process resulted in a long jury selection process.  The Clerk of Court told us during orientation that she expected the jury to be chosen by noon to 1 pm.  Our process drug on until to almost 5 pm.  The judge appeared to let the two lawyers to somewhat "try" their case in order to get the jury pool's feelings on broad arguments they planned to make.  I guess the better to get rid of jurors who they felt were unsympathetic to their case.  Everyone's time was wasted by Lympus's lack of involvement and control.

The plaintiff lawyer, Henning, asked questions of the jurors from after 10 am until 3 pm or later, minus an hour and a half for lunch.  An hour and a half?  An hour was plenty.  Let's get the process over so the jury can be seated and everyone else released so they could go back to work or home.


Here is an article on what the lawsuit is about:
http://www.flatheadbeacon.com/articles/article/family_of_boy_who_drowned_in_septic_tank_suing_developers_evergreen_sewer/15537/

   The part of the lawsuit I was in the jury pool for was:

Last year, Henning filed a separate suit in Flathead District Court against Mohl Concrete Products, Inc., which sold the septic tank, and against Washington-based W.M. Matzke Co., which built and distributed the septic cover without the “kid catcher” safety device.

The plaintiff lawyer asked questions like:

1. This tragedy was covered extensively in the news.  What have you heard about it?
2. This trial is about product liability.  What do you know about product liability cases? 
3. If a mom and pop shop sold an item sealed in a package that was defective, the law says they can be held responsible for it being defective in addition to the manufacturer of the product.  Would you have a problem following the law to hold the mom and pop shop responsible for damages?
4. Has anyone lost a person close to them?
5. Who has heard about tort reform?  What are your feelings about tort reform?
6. The burden of proof for the plaintiffs is that their argument is more likely than not.  That could mean you could feel 50.1% one way to 49.9% the other way.  Are you comfortable with that, or would you feel you needed a higher burden of proof?
7. Would you have a problem awarding a large sum for damages?
8. The law says the jurors must only consider cause and harm when awarding damages.  Would you have a problem following the law when deciding damages, and you would not take in account of things like whether the party is deserving, etc.?
9. We had a three year old boy who died and we will never know how his life will have turned out. We will have an expert testifying to the loss income of the three year old.  Do you have a problem awarding damages for lost income?
10. And on and on and on...

He asked everyone some kind of question in order to get a feel on how they would decide the case.

For how much people knew about the case, most people were general and said they had read about it or seen TV news coverage.  A few people mentioned a few details.  I mentioned even more details.

For product liability cases I brought up the McDonalds/Hot coffee trial.  He said that was negligence and not product liability.  My impression was he didn't want to discuss it.  Later, in regards liability vs negligence I brought up stupid stickers warning against commonsense behavior.  The example I used was a sticker saying not to use a blow dryer while taking a bath.  He didn't want to talk much about these scenarios and changed the subject.

For the tort reform question I explained a little about tort reform. He flattered me and praised my description as very good.  Like I said, flattery.   After lunch he asked a few follow up questions of a few people.  To me he asked me to explain more about tort reform and how I felt about it.  I gave a long winded answer listing pros and cons and when pressed I said I could see good ideas on both sides of the issue.

A number of people had no strong opinions on matters.  But when it came to the question about losing someone in their life some people talked about their family losing a member or relative before the person answering the question was even born and therefore it didn't really affect them.  They didn't get that the lawyers were only interested in situations where the loss was so close as to have had an effect on the person.  The lawyers were trying to figure out the emotional versus the analytical people.

From the plaintiff lawyer's questions he seemed to be asking for damages for:

1. the boy's funeral expenses
2. the boy's lost income
3. the parent's loss

He focused on whether anyone had a problem awarding damages based on the boy's funeral expenses.  No one did.  A couple of people had reservations with awarding damages on lost income for a three year old as they said no one can predict how his life would turn out.

I told him I had no problem with an expert testifying about lost income, but I had a problem with giving a deceased dependent a settlement for damages.  I had no problem awarding damages to an estate of a person who was not a dependent, especially if the deceased was a spouse or had children or others dependent on them.  I suppose that since an "estate" is an abstract legal concept even a three year old could have an estate.  By damages to me mean compensation and how do you compensate a dead three year old?  Awarding damages to a dead three year old seems to be punitive as they cannot benefit from the amount awarded to "them".

I opened up a can of worms and a few people began to open up they had a problem awarding damages on the future income of a three year old.

Challenges for cause:  Here the lawyer claims on the basis of information provided by the panel member that he or she might not be able to render an impartial verdict. An example of a challenge for cause might be one in which a lawyer asks to excuse a panel member from serving during an auto theft trial since the juror’s car had been stolen just the week before. The judge will grant challenges for cause if he or she agrees with the lawyer’s argument that impartiality might be threatened. There is no limit to the number of challenges for cause, which either party can make.

The lawyer pressed people on whether they could set aside their conviction on an issue and follow the law as stated by the lawyer.  A few people said they weren't sure they could set aside their conviction on the matter and the lawyer asked the judge to excuse that person for "cause".  A few times the female defense lawyer objected and had an opportunity to question the potential juror some more.  Usually she impressed on the person that the law was such and such and then asked if they couldn't set aside their personal convictions and follow the law.  People think of themselves as law abiding individuals and most said they would follow the law even if they didn't agree with it.  The judge sometimes granted the request to excuse the juror and other times overruled it depending on how reluctant the juror said they could follow the law.

In my case of awarding damages to an estate of a three year old, when pressed by the plaintiff lawyer I said I would follow the law but I would struggle with it.  He said I should think about it more and he would get back to me.  Once the defense attorney stepped up with objections to jurors being dismissed the plaintiff lawyer toned down his efforts to get rid of people who he felt was unsympathetic to his case.   He never got back to me for my final answer.

Whenever a potential juror was excused the court called from the jury pool the next person on the list.   As they had not been part of the prior questioning the lawyer would go over an abbreviated list of his questions with them to get a "feel" for how they could rule.

Around 3 pm the plaintiff lawyer finally finished and the defense attorney had a chance to question the jurors.  Even though she had heard everyone speak and mostly likely had a decent idea on how they felt about things, she still asked everyone a question or two.  Sometimes it was a hypothetical question as to who they would select as their charity if someone wanted to donate money in their name.  Other times it was further questions about losing a loved one.  For people who answered on their jury questionnaires that they had served on a jury before she wanted to know more about that experience and how it went.

She also used this questioning as an opportunity to make her case.  For example one question was about this hypothetical situation:

Suppose a person had some strong chemicals in a closet that has a door that locked.  Supposed the door's lock was broken and a child got into the room and into the chemicals and something bad happened.  Do feel the business that sold the door should be held responsible for what happened? 

When the person answered no, she then asked that if the person knew that some doors were sold with an additional deadbolt lock, would the person hold the business responsible for the accident for selling a door without a deadbolt?

Yup, this appears to be the case in a nutshell.

She asked several other hypothetical questions on situations very similar to this case and asked how the potential juror felt about it.

Yup.  The jury selection process can be improved in Montana.  The judge should be the main driver of the questioning.

Finally around 4:20 pm the lawyers quit the questioning and entered the next phase of jury selection:

Peremptory challenges:  Each side has a limited number of challenges for which no reason need be given. These peremptory challenges give both sides some choice in the make-up of the jury. 

Each lawyer got to strike four people from the jury pool with no reasons given.  Of course this phase can open up trials to being overturned based on the appearance of racial or sexual profiling, or other issues.

At the end of the selection process, those in the panel who have been "challenged" will be excused, and those remaining will be sworn in as jurors.

When the names of the selected jurors were read, my name, along with a few other people with strong opinions, were absent.  The man who earlier was almost excused from the jury until the defense attorney got him to say he would follow the law as written, was also excused.  A woman who had strong emotional stories about losing people in her life and also volunteered to rescue animals was not chosen.

The eight of us not chosen could leave.   The jury selection them moved to the phase where the court selected two alternate jurors. I do not know how that works as I had left the courtroom when the court called some people up for more questioning from the jury pool.