The study tries to determine whether the common practice of asking jurors who otherwise appear biased if they can be fair works to exclude biased jurors. The study concludes that it does not. If this is correct, then the common voir dire practice of rehabilitating jurors by asking them if they can be fair should be banned.

The study explains:

To implement the impartial jury guarantee in both criminal and civil trials, in both federal and state courts, potential jurors are selected through a certain colloquy. The judge or attorneys ask the potential jurors whether they have any feelings or opinions about the litigants, attorneys, facts, or law of the case. As Suggs and Sales explain, “if the juror admits that he has formed an opinion about the case, it is standard procedure to ask if he can set aside that opinion and decide the case on the basis of the evidence to be presented” and the law as instructed.

Courts, and litigants, appear to rely heavily upon the answer to that question. The Ninth Circuit has stated that “[a]ctual bias is found where a prospective juror states that he cannot be impartial, or expresses a view adverse to one party’s position and responds equivocally as to whether he could be fair and impartial despite that view.” Scholars explain that, “it is clear that the juror’s self-assessment about fairness is the strongest factor in judicial decision-making in challenges for cause.

The study used pre-trial publicity to test juror bias. It concludes:

In summary, the research has shown that exposure to pretrial publicity prejudices jury pools. However, the research also shows that the mechanisms in place to ensure a fair trial for defendants may be ineffective at eliminating, or even reducing, juror bias. As other scholars explain, “a review of the literature shows a paucity of recent, systematic scientific research on the mechanics of voir dire.” Nonetheless, judges are still relying heavily on juror self-assessments of bias when trying to construct impartial juries, apparently just assuming that the assessments have epistemic value. Indeed, the Supreme Court has simply ignored the foregoing scientific literature, and instead proceeded blithely, relying on jurors’ self-diagnoses to affirm convictions and the imposition of civil liabilities, without requiring evidence about whether those self-diagnoses are reliable.

The study concluded that bad pre-trial publicity more than doubled the odds of a verdict against a defendant. In addition, jurors exposed to bad pre-trial publicity awarded more in damages in civil cases.

Jurors’ answers regarding whether they can be impartial are unreliable:

The courts of appeal say that they will defer to trial court determinations as to whether a juror can be impartial, as long as those determinations are based on “substantial evidence.” This study has shown that the juror’s responses to the magic question are not substantial evidence as to their actual impartiality. These experiments show that jurors’ self-diagnoses simply do not provide the courts with a reliable basis for sorting biased jurors from unbiased jurors. Trial courts should not rely upon such unreliable answers.

The article offers a solution that courts should apply the same standard applied to judges in recusal issues:   judge should disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

My  Take:

Add this to the list of things that can be done to improve the jury system. This would be a pretty easy fix.

Casino cheats in action. The winning always gives them away.

On April 4, 2013 a Washington County Circuit Court jury rendered a defense verdict in White v. Greenville Riverboat, LLC. 

On May 13, 2009, Plaintiff was playing the card game (21+3) at the Lighthouse Point Casino in Greenville.

Sidebar: What the hell is 21 + 3? Was the rock-paper-scissors table full or something? We’re going to call that mistake number 1 by Plaintiff.

Issues came up that, perhaps, Plaintiff and the dealer were cheating.

Sidebar: I assume it was because Plaintiff was winning, and everyone knows that only the house wins in 21 + 3.

The Mississippi Gaming Commission investigated. Plaintiff and the dealer were taken into a back room and got their hands smashed with a hammer arrested and charged with cheating.

Plaintiff was acquitted and sued the casino for malicious prosecution, abuse of process and intentional infliction of emotional distress.

Sidebar: But did she get to keep the 21 + 3 winnings? If so, did she have to “tip” the dealer half the winnings?

The case was tried April 2-4. The jury returned a defense verdict.

Sidebar: Jurors are biased against table game players, who appear “shady” when compared to the glassed-eyes-looking slot players.

Brett Bollinger of Zaubrecher Treadway in Covington represented the casino. Doug Wade of Greenville represented the plaintiff. Judge Betty Sander presided in the case.

Here is the press release:

WASHINGTON, DC – Today, President Barack Obama nominated Debra M. Brown, Pamela L. Reeves and Elizabeth A. Wolford for District Court judgeships.

 ”These individuals have demonstrated the talent, expertise, and fair-mindedness Americans expect and deserve from their judicial system,” said President Obama. “I am grateful for their willingness to serve and confident that they will apply the law with the utmost impartiality and integrity.” 

Debra M. Brown: Nominee for the United States District Court for the Northern District of Mississippi

Debra M. Brown has been a shareholder at the law firm of Wise Carter Child & Caraway, P.A. in Jackson since 2012, where she handles a wide variety of commercial litigation matters before both federal and state courts. Previously, she worked at Phelps Dunbar LLP for more than 14 years. Brown received her J.D. in 1997 from the University of Mississippi School of Law and her B.Arch. in 1987 from Mississippi State University. Between college and law school, Brown worked as an architect in the Washington, D.C. area. From 2003 to 2004, she served as President of the Mississippi Women Lawyers Association.

Brown’s name surfaced as a potential nominee in February.  

It will be interesting to see how long it takes for Brown’s confirmation. It’s hard to imagine any opposition–she’s respected and not controversial. In addition, she has worked with leading Republican insider Mike Wallace for many years.  You would think that Senators Cochran and Wicker were in the loop and support the nomination.

Update: Senator Wicker issue the following statement supporting Brown’s nomination:

WASHINGTON – U.S. Senator Roger Wicker (R-Miss.) issued the following statement regarding the nomination of Debra Brown to the District Court for the Northern District of Mississippi: 

“Debra Brown has a distinguished background in the practice of law. She is well-regarded among a number of people across the legal and political spectrum, and I am impressed by what they say about her qualifications and character. I will ask the Senate Judiciary Committee to schedule her hearing in the very near future.”

• $2,511,089 ($11,089 in actual damages, $2.5 million in punitive damages) antitrust verdict in Jasper County (Paulding);
• $350,000 verdict in Monroe County malicious prosecution case covered here;
• $80,000 verdict in Chickasaw County employment retaliation case;
• plaintiff’s verdict in the Rigsby false claims act case covered here;
• defense verdict in Hinds County car wreck case;
• defense verdict in Bolivar County nursing home case covered here;
• defense verdict in Gulfport federal court premises liability case;
• mistrial, then JNOV for defendants in Adams County medical malpractice trial; and
• defense verdict in Lowndes County medical malpractice trial.

My Take:

The JNOV after a mistrial is interesting, since JNOV stands for “judgement notwithstanding the verdict”, and there was not a verdict. As far as I know, there is no JNOM in the rule book. Not that I disagree with the judge finding a way to throw out the case out if he felt like a directed verdict should have been granted.

Paulding is an interesting place to try a case. Nothing there except the courthouse. Not even a country store. I don’t really get Jasper County having two judicial districts.

Riveting stuff.

Dr. Paul Bracey treated Patrina Reynolds at the St. D emergency room in 2007.   Dr. Bracey ordered an antibiotic and sent Ms. Reynolds home. Ms. Reynolds ended up getting very sick and going blind.

Plaintiff alleged that Dr. Bracey should have admitted Ms. Reynolds and ordered additional medications because she had SIRS and an infection. The defense disagreed and countered that Ms. Reynolds went blind due to an unforeseeable reaction to medication.

At the end of a week long trial, a Hinds County jury returned a defense verdict after three hours of deliberations. Good news for the defendants, Dr. Paul Bracey and Allied Emergency Services, and their attorney, Whit Johnson of Currie Johnson in Flowood.

An hour and a half later, the attorneys were back in court facing a likely mistrial. What happened?

After returning to their offices following the reading of the verdict, the attorneys got a call from Judge Jeff Weill, who reported that the jury was given the wrong written instructions in deliberations. Now the good part. 

The jury was not given the instructions issued by the Court following the instructions conference. Instead, the jury was given the instructions filed by the Defendants the Friday before trial.

I was in the courtroom Friday afternoon and had the chance to look at the defense instructions. The first one was “the court instructs you to find for the defendants.” From there the instructions didn’t get much better. Based on the written instructions given, there was literally no way for the jury to render a plaintiff’s verdict.

Literally–no–way. Even if the jury wanted to find for the plaintiff, there was no way to get there from the written instructions that went to the jury deliberation room.

How did it happen? After reading the instructions to the jury, Judge Weill placed them on the bench so the parties could use them in closing argument.  At some point, the official set disappeared. They hadn’t turned up when the attorneys were in the courtroom late Friday afternoon.

When the jury went to deliberate a bailiff looked for the jury instructions. He found a set back over in the neighborhood where a law clerk often sits on the other side of the bench away from the jury. That would be the defense set. The bailiff then delivered the found defense set to the jury.

The Court caught the problem when Judge Weill’s staff went to retrieve the jury instructions so they could be filed.

Plaintiff’s counsel moved for a mistrial. Defense counsel asked for time to investigate the facts and research the issues. Judge Weill requested a written motion from the Plaintiff to be filed within ten days.

The lawyers and judge looked about like you would expect. Judge Weill looked like he was having a Maalox moment.

Defense attorney Whit Johnson looked like Lloyd Bridges in the movie Airplane announcing that he picked the wrong week to stop sniffing glue.

Plaintiff’s counsel Darryl Gibbs, Rogen Chhabra and John Giddens looked like death row inmates who were just granted a last minute stay of execution.

My Take:

Let’s be honest. This is kind of funny if you aren’t involved in the case. This case will be the subject of a lot of talk in lawyer watering holes over the next few weeks. And the later in the night it gets the funnier it will be.

For the parties, lawyers and court involved in the case? Not so funny. A lot of work just went down the drain. Barring a settlement, it’s hard to see this one not being re-tried.

I will probably write more about this in a later post, but this is indicative of the problem with how state court judges handle jury instructions that I wrote about in this post a couple of weeks ago.

Here is the Court’s opinion and order. The trial was in June 2011.

The case facts would be great for a contracts class in law school. HCEDD sold land to plaintiffs in  the J.C. Sonny McDonald Industrial Center. Plaintiff needed 3-phase power and a sanitary sewer line. HCEDD’s representative stated that the industrial park had it–even pointing to sewer manhole covers along the frontage road portion of the property. As a result, plaintiffs bought the property for $16,000 per acre and started construction.

Unfortunately, when W&G’s contractor prepared to attach to  the electrical power, he learned that there was no power on the property. It took two months to get temporary power because it had to be run across I-55.

Later, the plumbing contractor prepared to connect the plumbing to the sewer lines running along the frontage road. You guessed it. No sewer lines. Two months later, HCEDD installed a septic tank that was not designed to handle the levels of discharge produced by plaintiff’s business.

Feelings were hurt. Frustration prevailed. Litigation followed.

The court found that HCEDD breached the contract by not having sewer lines and power available at the property.

The court awarded the following damages:

• $56,000- difference between value of property represented vs. actually received
• $137,034- lost profits
• $1,120- out of pocket damages

Total damages were $194,145.95.

Jud Lee of Madison and Toby Coleman represented the plaintiff. Lawson Hester of Wyatt Tarrant and Combs in Jackson represented the defendant.

In general, the report notes that there has been a steady drop in medical malpractice payouts nationwide since 2001. The report identifies Mississippi as having some of the lowest payouts in the nation in terms of total payouts and payouts on a per capita basis. 

Per capita, medical malpractice payouts in Mississippi were $4.17. The only states with lower per capita payouts were Texas, North Dakota and Wisconsin.

By comparison, New York had the highest per capita payouts at $38.99. Connecticut, Massachusetts, New Jersey and Pennsylvania also had per capita payouts of over $20.00.

In addition, five states represent 48% of all payouts. (Florida, New Jersey, California, Pennsylvania, and New York). This stat is interesting, but I find the per capita stat more meaningful, since the overall population of these states is so high.

My Take:

Mississippi’s status as a low payout state is not surprising to regular readers of this blog or the Mississippi Jury Verdict Reporter.

It’s interesting that the top ten states in per capita payouts are all blue states (voted for Obama in 2012 election) and all the bottom ten states are red states except for Wisconsin, Vermont and Nevada.

Unsurprising, but interesting.

The article explains how appointments are usually made:

The process for moving judicial nominees is simple enough. A president takes the lead on circuit court nominees, while, per longstanding tradition, a senator kickstarts the process for district court nominees, which make up the bulk of the federal court system. Senators make recommendations from their home states, and the president works with them to get at least some of the nominees confirmed — the idea being that senators, regardless of party, are motivated to advocate for nominees from their states. The White House may look at other nominees on its own, but typically won’t move forward without input from the corresponding senators. Once a nominee is submitted to the Senate, he or she receives a vote in the Senate Judiciary Committee. If approved, the nomination heads to the Senate floor for a full vote.

But, according to some, Republican Senators are not playing ball:

It turns out that since Obama took office, senators from some states — particularly those represented by two Republicans — have simply refused to make recommendations, according to data recently published by the Alliance for Justice, a left-leaning association of more than 100 organizations focused on the federal judiciary.

My Take:

I don’t doubt that Republican Senators are jacking Obama around on filling judge seats. But the President has leverage that he can use.

Why not tell the Senators that unless they get him a recommendation by ______, he will go public that he sought their input on whatever date, after x number of days they didn’t give it to him, so he is nominating _______________ without their input? That way the Senators would look bad and the President would get to bypass them.

I’ve written repeatedly during the Obama administration that the President does not appear to make filling judicial seats a priority. If he would, Republicans would probably jack him around less on this.

• Decisions on Verdicts: 2
• Plaintiff Verdicts Upheld: 1 (reversing court of appeals)
• Amount of Verdict Upheld: $500,000
• Plaintiff Verdicts Reversed: 1
• Amount of Verdict Reversed: $1 million

My Take:

Is it just me, or are things slow at the Supreme Court? Most of the appellate action seems to be in the Court of Appeals.