And Justice For All?
While my first experience last week as a juror in a civil suit (after serving only on criminal trials before) wasn’t exactly something out of “Law & Order,” the case did provide some interesting insights into how difficult it is to decide who is telling the truth on the witness stand, and how fair our judicial system ultimately is.
This was a textbook case of “he said, she said.”
He Said:
A guy who does woodwork on a contract basis says he’s riding his motorcycle to work on a warm October evening in 2007. He plans to meet up with a fellow biker (whose “real name” he does not know) to ride over to a potential client late on that Saturday evening to provide an estimate on a job.
The plaintiff says he got to the end of the block before he realized he’s not wearing his safety goggles. When he reached up to his helmet to pull them on, he can’t find them. He says he stopped the motorcycle, looked back and saw the goggles laying halfway up the street, in front of his house.
He says after he saw there was no oncoming traffic, he made what he called “a safe U-turn”–admittedly, now going the wrong way on a one-way street–to retrieve the goggles.
He says he stopped next to the goggles, put down his kick stand and was preparing to climb off the bike when he saw a car coming up the street. He decided to wait for the car to pass. He says with his headlight on, he “made eye contact” with the driver of the oncoming vehicle, and saw the woman behind the wheel on a cellphone. She then hit the side of his motorcycle and sent him flying.
He says the next thing he remembers is the woman standing over him as he’s lying flat on his back on the street, still on her cellphone, telling her supervisor she probably won’t make it to work (at a 24-hour Post Office) because “I hit some fool on his motorcycle.” He is then taken to the hospital by ambulance.
The plaintiff is suing the defendant for the damages caused by her allegedly negligent driving, although we do not hear any testimony about his injuries–and won’t unless we, the jury, find the defendant at least partially at fault for the accident.
The plaintiff rests without presenting any witnesses.
On cross-examination, the defense attorney gets the plaintiff to admit he’s lived on this block for 10 years, that there were numerous people out and about at the time of the accident who knew him, including one friend in particular who moved his damaged motorcycle off the street after he was taken to the hospital.
Yet no one came to court to back up his story. When asked point-blank why the friend who removed the motorcycle wasn’t there to corroborate his testimony, the plaintiff says, “I couldn’t get him to come here.”
Also on cross-examination, the defense counsel seemed to pull a trick out of the old “Perry Mason” handbook. Dramatically waving a piece of unidentified paper in his hand, he asked the plaintiff: “Isn’t it true you told the attending physician at the emergency room that you got hurt while biking up your block, popping a wheelie?” The defendant said no.
At that point, the judge piped in. “Do you have an objection, counselor?” When the plaintiff attorney said he did not, the judge said: “Well, you should!”
She then turned to the jury and repeatedly insisted that we disregard this question. “Unless the defense counsel produces a document from the hospital to the effect of what the defendant told him, or produces sworn testimony–either from a prior deposition or here in court–you are not to consider what the defense counsel said. It is not evidence.”
She Says:
The defendant testifies that she was driving at normal speed down the block, with a full hour to go before her shift began, taking her time since the Post Office was only a half-hour away.
Halfway down the block, she says she sees a motorcycle coming at her the wrong way up a one-way street, “popping a wheelie.” She says because the guy had his front tire pointed upwards, she didn’t see any headlight, and that he was practically on top of her before she could react.
Still, she says, she pulled to the left, away from the oncoming cyclist, and came to a full stop. However, the biker still plowed into the right side of her car and “went flying.”
She insists under both direct and cross-examination that she was absolutely not on her cellphone while she was driving the car. She says she pulled out her cellphone to call 911 first, then her supervisor at work, and told him, “I’m going to be late for work because some fool ran into me with his motorcycle.”
On cross-examination, the plaintiff attorney fails to rattle the defendant. The only chink in her testimony is that she failed to see the cyclist until he was almost on top of her, except to explain that since the front of his bike was pointing towards the sky, she could not see his headlight.
However, we in the jury are disappointed that the plaintiff’s lawyer did not request cellphone records to see who the defendant spoke with that night and when, to try to corroborate his client’s story that the woman who hit him was distracted because she was talking on her phone.
The next day, the defense calls the police officer who filed the accident report. It turns out the cop didn’t arrive on the scene until almost 90 minutes after the accident took place. (The defendant driver did wait around to talk with the cop, even though she was on the block where the plaintiff lived, which could perhaps be considered hostile territory.)
The cop filed a report based solely on the driver’s account–the story repeated in court by the defendant. At no time did he seek out the plaintiff’s side of the story. When asked on cross-examination why that was, he shrugged and said he didn’t know which hospital the defendant had been taken to. When pressed further, he added, “the plaintiff didn’t seek the police out, either.”
The defense rests.
So, that’s it! All the jury has to go on are the two conflicting stories of the plaintiff and defendant.
I thought it was odd that the driver did not at least hear the biker coming up the block towards her. After all, I speculated, I cannot imagine a motorcycle sneaking up on a driver, because their engines tend to be so obnoxiously loud.
But my speculation is not evidence in the case, and is waved aside by my fellow jurors. We focus instead on the only testimony in the case beyond dispute–that the plaintiff was going the wrong-way on a one-way street.
At best, the defendant is only partly at fault. But absent any corroborating evidence, in this “he said, she said,” we sided with the defendant, and found no fault on her part.
The driver’s version was simply more credible–that the guy was joy-riding late on a Saturday evening on his home block and ran into her car. It just did not seem plausible that she would run into a motorcycle parked on the street with its headlight shining in her eyes.
Case dismissed.
What do you folks think?
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It doesn’t get any better on criminal cases, either. We are all so “educated” by the multitude of laws shows on TV, we believe we are licensed and accomplished attorneys.
Like you, my jury duty experience has exposed me to just how ill thought out our judicial system is in its execution and how lazy attorneys seem to be in their prosecution or defense of clients.
Talk about “12 Angry Men”… I think, if polled, juries from across the country would account for quite a lot more than 12.
Glad to have you back in the “insurance saddle.”
You may be shocked to learn that our courts are really not necessarily about truth anymore. It is all about rules that only some sides have to abide by. Witnesses do not want to get involved.
It is not just making a statement or an appearance. You also get harassed by lawyers who want you to do depositions, produce documents, and be subjected to character damage. Your doctors will not be witnesses, as they are clearly fed up with lawyers. You have to find and pay experts.
You also have to go though some legal hoops to obtain phone records. Don’t expect the authorities to help with records or anything else.
And of course, don’t expect anyone (including the lawyers) to tell the truth.
The physical evidence is usually the most reliable. Unless the woman was driving sideways, he probably ran into her. I thought the Saturday night business appointment by the biker was a bit of a stretch anyway.
SAM RESPONDS:
About the business appointment, while the defense clearly tried to make this an issue–arguing in closing that it was unlikely the plaintiff was going to a business appointment on a Saturday night, and was more likely joyriding on his block–with independent contractors doing home improvements, it’s not that unusual to see them for assessments and estimates at odd hours, at least in the inner cities….That didn’t phase we the jury. It was the lack of evidence and the driving the wrong way that got us.
However, I hear you about the witnesses…..Plus this took over two years to get to trial, who even knows if the witnesses are still in Kings County, or even New York?
The plaintiff may have had a case, but his lawyer didn’t make one strong enough for the jury’s satisfaction.
Sounds like you flipped a coin. Given what you’ve described in the way of evidence, that also sounds like the best you could have done.
If it landed wrong side up, either there’s more going on than you were privy to and/or the plaintiff should be talking to a new attorney…
SAM RESPONDS:
Actually, it never came to a coin toss. It was a matter of who we believed. And given the lack of corroborating evidence, we bought the defendant’s story….it just seemed more consistent with the facts of the case. But bottom line, the fact the guy rode up the wrong way on a one-way street also prompted us not to cut him any slack, in the absence of any hard evidence to support his claim.
JR RESPONDS:
Sam, I didn’t mean to imply that you actually tossed a coin…simply that you were forced to make a decision absent the benefit of weighty evidence. A very difficult position.
By trade, I’m a risk analyst. I play professional ‘what if’. As I read your article, what stood out for me was how much of what should have been included in the evidence (not just witnesses) was missing. And, as I read, the outcome was clearly ordained.
You didn’t cut the plaintiff any slack because the plaintiff rode his MOTORCYCLE the wrong way up a one-way street. He apparently had flaky friends, and, perhaps a badly prepared case and/or attorney. Plaintiff testified poorly relative to defendant. He told you stuff that was embarrassing, even when it wasn’t in his interest to do so.
Yet, if plaintiff was also telling the truth about the other aspects of what occurred, he was stopped and parked at the time of the accident. Not driving. Would it have made a difference if he’d told you that he’d come up the street the wrong way and parked an hour or 24-hours before the accident, instead of just a few seconds? Or, if he’d gone around the block and then parked to pick-up his goggles?
In other words, if he wasn’t actually driving the wrong way at the time of the accident, what bearing did driving the wrong way earlier have on the outcome?
If they were exculpatory, defendant could have introduced her own cell phone records. There was no detail in your story about where on the street the motorcycle was when the collision took place or at what attitude to the oncoming traffic. Or, whose story, if either was supported by the impact damage to the auto and motorcycle.
Defense counsel, with no evidence of own, set out to manipulate you emotionally. The Judge understood, did you?
In the end, you assigned fault based (paltry as it was) on the evidence presented to you, your legal duty, but without any real knowledge of what actually occurred. Just your gut sense of the litigants’ relative credibility. That is, you apparently just thought he was more likely to have lied to you than she.
SAM RESPONDS:
The motorcycle was supposedly in the street, facing the wrong way, with its headlight on and on the left side of the street, which had cars parked on both sides, but with enough room for a car and motorcycle to pass with room to spare, according to both plaintiff and defendant. The only question is whether the bike was in motion (and popping a wheelie) as defendant claimed, or at a full stop, as plaintiff claimed.
We believed the defendant more than the plaintiff, given the full text of what we heard.
Yes, I figured defense counsel was trying to manipulate us–thus my reference to a “Perry Mason move” (TV Perry might sometimes say in the form of question, “What if I were to tell you I had in my possession a FILL IN THE BLANK IN TERMS OF A PIECE OF EVIDENCE, when in fact he had no such thing, but he rattled the witness into a damaging confession.
Well let’s see here. The plantiff claims the defendant hit the side of his motorcycle and the defendant claims the plantiff hit the right side of her car. I would think that photos or damage repair reports to the defendant’s car might help determine which was really true. Too bad either attorney didn’t bring that into evidence.
Absent of that, it seems to me that your jury made the correct decision, especially since the plantiff was going the wrong way.
SAM RESPONDS:
Actually, my bad. The plaintiff did admit as evidence a couple of pictures allegedly of the damaged bike, but we the jury could not make heads or tails of it. If he didn’t tell you it was a shot of a damaged motorcycle, you would never know.
The defendant never admitted any evidence showing pictures of the damaged car, although if the biker did indeed come down as she claims alongside the car, it might have looked the same as if she had sideswiped him, so who knows?
During my active career, investigating accidents, I’ve seen wrecks that in totality were the fault of one party or the other. Yet, in court, I’ve wondered whether I was hearing about the same accident or something that might have happened at Snow Whites Castle in Disneyland!
One memorable case was a truck running a red light at approximately 20-25 MPH over the speed limit and broadsiding another vehicle as it pulled forward from a green light. Witnesses clearly stated the truck was way over the speed limit and ran the light seconds after it was already red; crash dynamics and forensic evidence clearly showed the truck was speeding; lack of skid marks showed the driver had not braked or attempted to stop for the light.
In fact, the opposite may have been true, she might have accelerated to beat the yellow light and misjudged the timing. The driver of the truck was not injured at all. The driver of the vehicle she hit was seriously injured.
The defense attorney tried to pin the blame squarely on the other driver. Basically, he shouldn’t have been on the road.
After failing to discredit every witness with ploys such as “it was early morning and their eyesight was poor” to “were you really watching the light change colors?” and “were your headlights on?” (it was already daylight) and the most ridiculous of trying to say he shot into the path of his client like a slingshot dragster (the injured party was driving a small truck with a small engine) and thus violated her right of way since she was already in the intersection EVEN IF SHE HAD RUN THE LIGHT!
I think the funniest moment was when one witness stated: “If Mr. Jones hadn’t have been hit, I would have been since I was next in line and I would have then been first.” The attorney didn’t like that at all!
The plaintiff won an unspecified amount of damages in that case, deservedly so. But it does go to show how even the greatest amount of evidence can be played with, twisted and turned to create drama and spin tales that confuse the jury.
Even more concerning is the fact that the jury pool frequently consists of people with nothing else to do. As I’ve said before, I’ve been in the jury pool and always am disqualified, but looking around at the “jury of peers” I would be very afraid unless there was a change of venue to a better part of the county for some civil or criminal matters!
I am wondering where the insurance adjuster for the woman/defendant was during all of this. Surely, she turned in a claim the day of the accident.
If the plaintiff made the accusations at that time, and she denied being on the phone, the adjuster’s investigation should have included looking at her cellphone to confirm for their defense that she had not been on the phone. Until she releases her phone records, he can take photos of the call history displayed on the phone with the time and date stamps.
I would also expect the adjuster to find witnesses on that street and take recorded statements knowing that if a lawsuit arises it could take a couple of years and those witnesses might not be around.
Was none of this done by the carrier or did she not turn in a claim until she was sued?
SAM RESPONDS:
Insurance was never mentioned in the case, which was two phases. The first was to determine whether the defendant had any liability for the accident, and if so, how much of a percentage.
If we the jury had found her even 10 percent liable, a second phase of the trial would have started, in which we would hear testimony about damages and injuries. Perhaps insurance would have come up in the second part, but it never came to that.
Or perhaps she had no insurance! But if she didn’t, don’t you think the plaintiff’s attorney would have brought that to light? Or perhaps he was just an incompetent and/or lazy lawyer…..
Insurance never comes up in a trial, and the mere mention of it can cause a mistrial.
The reasoning behind this is that the court is strictly looking to find facts and make a determination as to liability and damages. If insurance is mentioned there is the probability that a jury could give that weight in place of actual responsibility and seeking justice–i.e. the concept that it does not matter whether there is fault or how much fault, insurance will just pay for it.