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"Forum Column - Role Reversal"

Daily Journal
By: Kurt W. Melchior

When I got yet another jury summons and then was asked to report for duty, I advised my colleagues and staff that I expected to be back in the office after lunch. I couldn't imagine my being asked to stay on a case, once the lawyers heard that I was an active trial lawyer. But I was wrong: I was juror No. 5.

This was a personal injury case in which a woman had the misfortune of falling out of a golf cart down a 15-foot ravine into a creek, and was badly injured. The issues were of course liability and damages. But what caused the fall; and how much was she damaged?

Several days into the trial, I discovered that a partner in my firm had represented the former owners of the golf course 10 years earlier, and I was ultimately excused from service, prior to deliberations, on the last day of evidence. That's another story about a dysfunctional system. Nevertheless, I'll share my experience as a juror, as it may be a useful study for other trial lawyers.

The plaintiff was 56 at the time of trial, 52 when she fell. She had been a photographer but had sold her studio and equipment before her fall. She had just started making costume jewelry from polymer clay.

On the fateful day, the cart path led through a woodsy area, uphill from the men's tee. There were no markings to indicate the drop-off. The asphalt path was just over eight feet wide, and there was a soft shoulder on the left. The wheels of the cart were six inches wide, which should have been enough to provide stability; but while driving toward the women's tee, the plaintiff went off the shoulder and fell out. No one saw her fall: Her playing partners (all men) heard her scream, and had a difficult time getting down into the ravine to rescue her.

My abiding impression was that such a serious drop should have been marked in some way and that the failure to do so was unacceptable; but there was testimony - as I recall, from both sides - that golf courses are supposed to give a natural feel and that barriers, fences and such are not acceptable for that reason - which doesn't make much sense to me. But I do not play golf.

The poor plaintiff had been very badly hurt. She fractured her scapula, among other things; and there was extensive medical evidence - only mildly challenged by a defense surgical expert - that her condition had caused long, excruciating pain and that highly skilled surgeons at the best university hospital had never experienced such a failure. She had finally found a surgeon who could, and did, effect a significant correction; but she was still in the hands of a chiropractor and continued to suffer substantial pain. Strangely, I do not recall any testimony that quantified her medical costs and damages.

Interestingly, the court permitted jurors' questions. A juror could write a question on a sheet of paper and the clerk would give it to the judge. The judge would read it to himself; and after direct, cross, redirect and recross were all finished he would have a bench conference with counsel, show them the question, and if there was no objection, read it to the witness.

One major complaint, for me, was that as the evidence came in, it was quite disjointed. It was hard to connect the dots. You would hear one witness's evidence, which might cover a slice of the case; and the witness would be gone. The next witness might have an entirely different concern. This was not a complicated case, though it took much time. Even so, I felt that the hither-and-yon of the narrative did not give a full picture of the few difficult parts.

There was a plethora of expert witnesses, including human factors experts for both sides - highly qualified people who had long teaching and field records, mainly in industrial or applied psychology, and who offered extensive qualifications but very limited and unexplained conclusions as to how the accident must have happened. They said little of substance; I felt they contributed just about nothing.

Neither of the lawyers was known to me even by name or reputation. The plaintiff's lead lawyer was surprisingly flat-voiced and unemotional, but asked leading questions (without objection) continuously. The defense lawyer was trim, tight and very well-prepared - as was the plaintiff's lawyer. He would usually ask few questions, based tightly on deposition testimony, and thus naturally got the answers he wanted.

The one expert who gave me real trouble was the plaintiff's damage expert, an economist who had testified in countless cases. As I said earlier, the plaintiff had stopped her photographic work and had gone into the making of polymer clay jewelry. She had done that for about eight months at the time of the accident; and of course she had been too disabled to work since, although the defense medical expert thought that her pain would abide enough that she could start again in about six months - a speculation, I thought.

The plaintiff had sold such jewelry for a total of some $1,500 in the eight months before the accident. Her expenses related to this business in the same period were about $2,600. Somehow the damages expert compounded that figure into a lifetime loss of net income for the woman of $1.5 million!

On cross examination, the witness conceded that he had not taken into account any of her costs except that of the clay - 9 percent of the sales price. That caused me, old antitrust lawyer that I am, to write out a question that the judge duly asked, whether the witness thought that only variable costs mattered and fixed costs could be ignored.

That's a very good question, the witness answered. "If she had been in business a little longer, of course I would have taken the fixed costs into consideration. But since she just got started, I thought the analysis would be clearer with just the costs of the clay," which he said were 9 percent of the sales price.

My reaction was that this testimony was absolutely over the top; totally incredible; destructive of the integrity of the entire plaintiff's case. I couldn't believe that an experienced expert would embarrass the plaintiff's good case and his own integrity by such a ridiculously untenable, greedy projection. I was eager to hear what the other jurors thought of this baloney.

But when I saw the verdict, I couldn't believe my eyes: The jury returned a verdict of some $3.5 million!

They awarded $1 million for pain and suffering, $1 million for lost earnings to the date of trial, and the full $1.5 million for loss of future earnings!

I can't imagine that plaintiff's counsel really expected the amount of damages - the future earnings number - to be taken seriously; but there it was.

I approached this trial with a totally open mind, and knew nothing about the facts other than what I heard in court. To repeat, I have no doubt that the plaintiff suffered very serious, disabling, painful injuries and I found the concealed 15-foot drop into the ravine very dangerous. But the loss of earnings that the jury awarded is so far beyond any semblance of reality that I cannot come to terms with it.

These jurors were rational people, a fine cross section of my community, and they fell for this. What are the lessons of this experience for other cases, for other demands, for other settlements?

Kurt Melchior is a partner at Nossaman Guthner Knox & Elliott in the firm's San Francisco office, where he practices litigation and serves as general counsel.

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