“Sustained.”
The attorney for the insurance company claims that the attorney for the Defendant has opened the door to such questions. He tries a second time, and then a third, and then a fourth, and on.
“Objection. Hearsay.”
“Sustained.”
We hear this continually, all afternoon. Though the objections will soon get old, there’s tension in the room right now and the jurors are focused on the witness up on the stand.
When the day is over, and we are walking down the hallway to the elevator, we are as lively as we’ve been since the trial began.
“It’s nice to have a little action,” one of the jurors says. “It kept me awake, at least.”
I can only imagine that the Plaintiffs’ attorneys have spent months planning the logic of this trial. Still, it all seems disjointed, haphazard, unplanned.
Witnesses are called, and there is little connection between one and the next.
Questions asked of individual witnesses switch quickly from the present to the accident six years ago, to the witnesses’ deposition, which may have been given a few months or several years ago, then back to the present.
My juror notebook jumps around from one bit of information to another.
It gradually becomes clear that Dr. Bathgate has not given a deposition and will not testify in court.
Several safety experts testify, and they read regulations and codes to us. There is nothing less lively in a courtroom than witnesses reading regulations and code out loud.
The attorneys argue about the meaning of a “walkway,” about the meaning of a “hole.” According to federal regulations read by one of the experts, a hole must be at least two inches deep (or, more technically, two inches “in its least dimension”).
Sworn testimony by the witnesses in the case describes the hole (if it is a hole) that the injured man stepped onto the lip of as, variously, half an inch to three quarters of an inch deep; one inch to two inches deep; and two inches to three inches deep. The only witness who testifies that the hole was deeper than two inches is the injured man.
The court’s rules are built on Enlightenment notions of rationality. When the judge strikes something from the record we are directed to forget it entirely as if we are machines. When we listen to testimony, we are to consider the evidence alone. We are directed not to draw conclusions until all the evidence has been given. After three weeks of evidence, when we are allowed to draw conclusions, we are to put our biases aside.
The attorneys know that we are humans, not machines. They ask leading questions to try to elicit answers from witnesses before an objection can be voiced. They direct witnesses to share information that the judge will later rule is inadmissible. They argue when they are not allowed to argue. They tell jokes. They try to win our sympathy.
And it works. We start to take sides.
I had a cup of tea before court began at nine. Now, at ten thirty, I need to go to the restroom. I’m having trouble concentrating on the witness’s answers.
The attorney for the insurance company is asking a witness about the worksite.
“I don’t really recall,” the witness keeps saying. “It was six years ago . . .”
The case does not seem to be getting anywhere, and I’m not sure what, if anything, we’ve learned from this witness. At this moment I don’t really care much. I’m feeling very much trapped in this animal body, and though I’m trying to concentrate on the testimony, I just want the morning break to come so I can go take a piss.
Most days, I watch the lawyers and paralegals watching us in the jury box. I imagine they are trying to decipher our opinions in the case by gauging our reactions to the witnesses’ testimony. They watch us, and they take notes on their laptops. During breaks, they casually listen to our banter while they organize papers.
“I bet there is a whole world going on in front of us, and we can’t see it because we don’t know how this works,” the juror in front of me says during a break.
Two experts testify about the site of the accident and whether signs would have prevented the injury. The expert retained by the Plaintiffs has experience with the construction industry, while the one retained by the Defendant has experience in academia and research. The first has a master’s degree in psychology; the second has a PhD in psychology, from Stanford.
The first expert is a middle-aged woman on retainer by the Plaintiffs’ attorneys. The second is a thirty-something woman on retainer by the Defendant. The Plaintiffs’ expert is homely; the Defendant’s expert is good looking, maybe beautiful: slender, long brown hair, a fitted suit.
If I admit that I’m more persuaded by the second woman, will you believe me when I tell you that her testimony was more convincing?
I am becoming fixated on the attorney for one of the Plaintiffs. Every day, he rolls his eyes when he doesn’t get his way. He bullies the Defendant’s witnesses.
We are admonished every day not to “form or express an opinion,” and at this I am failing daily. Though I am not making any final conclusions, each time I see and hear this attorney speak, I am pushed ever closer to a final conclusion.
A new witness for the Defendant tells us that the two inches in the “least dimension” in the definition of a “hole” refers horizontally, not vertically. A “hole” is between two and eighteen inches wide, he explains to us. Anything larger than eighteen inches wide is a “floor opening.”
The Defendant’s attorney projects a copy of the federal code up on the wall while the witness tells us a “hole” needs to be at least six feet deep to be a hole. Same for a “floor opening.” Six feet.
DEFENDANT’S ATTORNEY: So were these irregularities in the floor “holes”?
WITNESS: No, sir.
DEFENDANT’S ATTORNEY: And were they “floor openings”?
WITNESS: No, sir.
We are told the irregularities were “edges.”
The injured man’s wife is a witness. She takes the stand first thing one morning, and her testimony lasts only five minutes. Halfway through it, when asked to describe the injured man’s daily schedule, she bursts into tears. She cries on and off as she gives answers to the injured man’s attorney. It is the first time during the trial that we see any outward emotion. For five minutes, we are reminded that we are dealing with human events, human lives, and not just charts and numbers and expert opinions on the correct use of ladders.
And then we return to another safety expert, and the trial goes on as before.
On the last day of witness testimony, the Defendant’s attorney calls an orthopedic surgeon to the stand. His CV indicates that he may be one of the top orthopedic surgeons in the country, maybe the world.
The surgeon says that some of the medical problems that the injured man sustained in the past six years were caused by the accident in question, and some were long-term degenerative problems not caused by the accident. The witness does not try to say more than he is asked, as other witnesses have. He does not try to argue a side, as other witnesses have.
Under cross-examination we learn that the surgeon lives in Orange County, that the Defendant’s attorney has flown him up to San Francisco for the day. We learn that he charges $9,000 a day for his testimony, $4,000 for half a day.
“Isn’t it interesting,” the injured man’s attorney asks him, “how each side can find expert witnesses who can argue for their position?”
During afternoon break the clerk, who is standing by the jury box, is asked by a juror how he can get out of jury service next time. In California, you can be called once every twelve months for jury duty.
“I could do maybe one week a year, but there’s no way my employer could handle three weeks, two years in a row,” the juror says.
“Well,” the clerk tells him, “people are picked from the voter rolls.”
“Then I’m going to un-register to vote,” says the woman beside me. “I don’t like voting anymore, either.”
We are told it will take a day for the attorn
eys to finalize the evidence, so we will not need to return to the courtroom on Friday. We will not have court on Monday, either. We are to return on Tuesday morning, at 9 a.m.
On Friday afternoon, I get a call from the clerk. “It’s taking longer than the attorneys had anticipated,” he says. “We will start at 1 p.m. on Tuesday.”
We return on Tuesday afternoon, ready for it all to be over. We’ve been standing in the hallway, prior to court, explaining to each other that we all need to get back to work.
The judge tells us that he will read us his instructions, and then we will hear closing arguments.
“This will take all of this afternoon,” he tells us. “Hopefully we will be ready to give you the case by late tomorrow morning.”
He reads us his instructions for half an hour or more.
During closing arguments, the injured man’s attorney says he thinks we should award his client $9 million. He tells us this is like $240 a day for the man’s suffering. (His math is off by only $7 million.)
“A pitcher makes $10 million a year,” his says, by way of explaining the large number, “and he only pitches every fifth night, six months a year.” There are many baseball fans on the jury. They’ve been talking about the Giants during breaks for weeks. Three went to a game this weekend.
The Defendant’s attorney begins his closing arguments by focusing on the injured man’s neck, and how the neck problem is not related to the initial back injury. He argues for fifteen minutes about this, and I start to think he’s given up on the case. Of the almost $300,000 in medical expenses claimed by the insurance company, the neck makes up only $25,000. It’s nothing, really, in a case where the plaintiffs are asking $9 million. The Defendant’s attorney argues for two hours.
The two Plaintiffs’ attorneys each receive forty-five minutes plus rebuttal time.
Eventually, the Defendant’s attorney gets to the more substantial elements of the case. I realize that the order is important. If he started by saying that the Defendant was not liable, it would be odd to then switch gears and say, well, if we were liable then we would be liable for only a fraction of what the Plaintiffs are seeking.
After three weeks of jury duty, we seem to be where we started. We are going to have to decide whether a construction company doing demolition in an old hospital building should have filled in shallow “holes” they had created in the floor, or at least put up signs or barricades.
The judge gives us our final instructions, and the bailiff leads us to the room in the back of the building where we will make our deliberations.
We are to answer nine questions. Some of the questions have multiple points. The jury instructions are seventy pages long.
An early vote establishes that we are going to find the Defendant liable for the accident. Nine people vote for liability; three vote against it. Most of the rest of the deliberations concern how much we are to award.
We try to piece together answers to the next eight questions, but it’s difficult to find any rational basis for many of the questions. Are we to award past economic earnings based on the injured man’s income from the year before the accident, or the two years before, or the three years before? Are we to take into consideration the decline in construction jobs? How do we know the cost of medication, or doctors’ office visits? Questions beget more questions as the afternoon goes on.
The majority starts to splinter when it becomes clear that some members are going to try to give the injured man as much as possible in every instance, even when they cannot come up with a rational justification based on the evidence in the case. One juror, who voted for the Plaintiff on the big question, now tries to delicately backstep.
“We should decide if we are going to follow the rules, or not,” one juror says during an argument over prescription drugs. One of the nurses has just told us that medical inflation is 6 percent. “If we are going to use outside information, fine,” the juror says, “but let’s be clear with ourselves that we are not following the rules.”
At one point, we ask the judge for help, some context, as we try to figure out what a reasonable Future Medical Expense award might be. The bailiff returns with a note: “It is entirely up to your judgment.”
For three weeks, we’ve been told two conflicting stories about an accident that took place six years ago. Nothing was ever proven, just different opinions offered. As we deliberate, we make up the rules as we go, justifying, rationalizing our gut feelings, until the total award approaches $5 million, then pushes past it.
When we are finished, we head back into the courtroom, and then, our decision entered into the record, our duty done, we head out into San Francisco, citizens making our way home along the crowded sidewalks of our city, as the late afternoon sunlight shines down on us, so bright that we must shade our eyes, lest we be blinded.
MARK HITZ
Shadehill
FROM Glimmer Train
AT FIRST ALL the mothers were going into town. Then my cousin Jacob wanted to go, so I wanted to go. My uncles wanted to go, my father, my sister. We had arrived unprepared and now needed food by the pound, beer, fishing line, lighter fluid, worms, gasoline, comic books. This would be fun, everyone was going into town. Only my grandfather Ennis stayed behind. He leaned on the cabin porch behind a twisting screen of cigar smoke and watched three generations load into two long, low-slung vehicles, kids crushed in, limbs waving as we coughed across the dusty South Dakota grassland. Bye!
We came back in a laughing, marauding mess, toys and meat and toilet paper coming out of our ears. Ennis lay napping on the sofa. “The War Party,” he said into his hat, “has returned with their spoils.” I settled in at the kitchen sink to peel an acre of potatoes for my grandmother. We were fourteen strong, ready to vacation hard, and needed nourishment. I peeled and watched Mary and Jacob in the sideyard dig a hole for some reason, or maybe no reason at all. My grandmother stood beside me mixing the next day’s sourdough pancake batter and singing hymns under her breath. Ennis kissed her on the cheek and said, “I got a beaver.”
“There’s more than one,” she said.
“Well then I got one beaver.”
“What’s all this?” I said, which was something my mother said. “You’ll cut yourself like that,” she said. “Hold it like this. You know that nice little lonely tree on the point. They chewed through it, my favorite tree, always struggling out there all alone.”
Ardyce was the reluctant keeper of our family cabin. She hated the place. Hated the wind, the dust, the bad water pressure, but believed, correctly, that as long as it was standing and put together, we would converge.
Soon I became aware of a gun on the porch. Wonderful. A gun. My father, who also knew nothing about guns, held it at arm’s length like an unearthed artifact, a curious thing of meaning. I excused myself to the bathroom then went directly to the weaponized area, where Ennis was explaining to the men how he’d shot the beaver down by the floating dock, which we could just see from the porch. He’d built the cabin ten years before on a middle plateau, next to a cliff that dropped straight into the water of Shadehill Reservoir, a vast and unaccountably salty lake in northern South Dakota. The cabin sat defiantly beyond the restriction line—he knew the county assessor and liked it better there—but the plateau was unstable, hence the restriction, and every year the cliff receded a few inches, sometimes more than a foot, taking part of the yard with it and threatening to one day swallow the cabin itself. Every summer we had the same conversation about where the cliff’s edge was now and where it used to be, how many good years before the cabin fell into the lake.
“Not much to it really,” Ennis said. “Filthy things swim around under the dock. Saw him go under there. A second later and he’d still be alive, I’d have never seen him. So I uncorked the Savage and walked over to the edge there so I could get a better look. It paddled on out a minute later.”
We all agreed it was a good shot, off a cliff with no scope, aiming at nothing but a wet crest in the wat
er, and moving at that. We passed the loaded gun around and held it to our shoulders, imagined ourselves doing the same thing. There would be more opportunities.
Someone else finished the potatoes and soon everyone was relaxing into our week together, the adults leaning with drink, every nose in the air awaiting dinner and pulling those aromas of my childhood summers, roasted meat and casserole, cigarette smoke and gin. Sleeping quarters were prepared in the cabin, in the travel trailer, in my grandfather’s army tent, and on the flat bow of the fishing boat, my favorite, where you could drift under that bright net of Midwestern stars.
Everyone had scattered through the property and down to the water’s edge, so my grandmother hobbled around announcing dinner and gathering grandchildren, giving her standard ten-minute warning. Do not come to the table wet, do not come to the table covered in sand, take this time to clean up and comb your hair or you will go hungry, I promise you. Where’s Ophelia?
One of the twins. Patsy and Ophelia, both eleven years old. They were quiet girls, languid and milky, with dark hair and deferring eyes. Ophelia had been growing more independent, to Patsy’s dismay, and loved to travel in water, prove herself with ever-longer distances, so this was the first thing said: she swam around the point to another beach. It was a stupid thing she’d done before.
The kids spent ten minutes calling her name as far as our feet and voices could reach. Then we came back to the cabin where my uncle Charles was telling a funny story about running out of gas in a single-engine plane and landing it on a restricted runway at Grand Forks Air Force Base, high on an unnamed drug, while Ennis, who should have been the one flying the plane, lay drunk and unconscious in the passenger seat. Everyone but Dale’s wife, Belle, had heard it before or was involved, and everyone was captivated. He had perfected it. They all laughed. Ophelia, I said, is missing.
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