If you're going to serve on a jury, you’re lucky if it turns out to be an interesting case. This is a story about a jury I served on circa 1996.
I had the wonderful opportunity this past week to serve on a jury for the first time in my life. Yes, even though I was called out for jury duty twice shortly after I came to work for NASA ten years ago, I never actually served on a jury from the opening statements to the deliberation and verdict. Then I was given a second sign that voting for Perot had been a mistake. [The first sign was when I realized from his babbling that he was a lunatic. The second was when I remembered that there’s a correlation between voting and selection for jury duty.] So off I went to perform my civic responsibilities and in the process learned more about the current state of our judicial system than any one person should know. If nothing else, the experience was amusing. Everything that I’m about to tell you actually happened during the trial with the exception of the parts that I made up to make the story more interesting.
THE CASE
The jury on which I served was for a civil trial. The plaintiff alleged that she had back injuries stemming from a fall she took down a stairwell at her place of employment: The Magnolia Bar & Grill, a Houston Restaurant located on Richmond Avenue. She was suing the owners for negligence and wrongful termination.
THE LAWYERS
The plaintiff’s lawyer, hereafter referred to as the slimy one, looked a lot like Martin Mull with darker hair and no chin. In the following days I would come to know him as a perfect specimen of his species: Ambulari Chasorus—The Ambulance Chaser. Sure, you’ve seen him on TV, in commercials and on the news, but there’s nothing that can quite prepare you for observing him in his natural habitat. Kind of like seeing the lions at the zoo… loose, that is.
The defense team consisted of a pair of lawyers who in a previous life were either attack dogs or cock fighters. Apparently lawyers can smell ineptitude because they were chomping at the bit to tear into the plaintiff’s case. I actually enjoyed watching them tear the plaintiff’s story apart, ravaging it like starving, satanically possessed, PCP crazed, rabid pit bull dogs. That is until they got around to tearing the pieces into pieces and then the pieces of pieces into more pieces. It started getting pretty dull and repetitive at that point. Some people just never know the right moment to douse the carcass with gasoline and burn what’s left. But I get ahead of myself. Let’s move on to the actual testimony of the trial.
THE TESTIMONY
Prior to her fall, the plaintiff had preexisting back problems, so part of the job that fell to her attorney was to build a credible argument that her fall contributed to further damage of her back. The plaintiff’s first witness was her chiropractor. He testified that indeed her tumble down the stairwell significantly exacerbated her existing back problems and made them much worse. Upon cross-examination, it was learned that the chiropractor’s records indicated that the plaintiff had made no mention of her fall to him until six months after the incident occurred. She didn’t think that it was significant enough to mention, although over that six month period she mentioned at least four things to her chiropractor that aggravated her back including moving a couch, carrying her niece, falling off her commode (I don’t remember if we ever found out if she was sitting on it or standing on it), and driving for a prolonged period of time. All of these incidents were duly noted in the chiropractor’s records. The chiropractor noted that back injuries caused by accidents could often take months to manifest so it was believable that her injuries from the fall weren’t immediately apparent.
Next on the witness stand came the plaintiff herself. Here’s where the inconsistencies started flying and they never stopped. You see, if her injuries from the fall took six months to manifest, you really don’t know that they were caused by the fall and not something else (like falling off her commode). So now she says that her back problems got immediately worse after she fell at work. “But wait,” you say, “if they got immediately worse, wouldn’t she have connected the fall with her back getting worse and mentioned this to her chiropractor? I mean doing a flip down a stairwell and landing so hard that your butt gets bruised isn’t exactly falling off a toilet, but it certainly falls into the category of things that you’d probably mention to your chiropractor.” Well, if that’s what you’d say, you’d be wrong. If we believe her chiropractor’s records, falling down a stairwell actually improved her back because several weeks after her tumble, she told her chiropractor that her back treatments seemed to be working because her back was feeling much better.
Well, for the sake of argument, let’s just say that the fall did further injure her back, because in all honesty it’s not that hard to believe, even though her own testimony seems to indicate that it really didn’t make it much worse. Let me back up a minute and say that no one involved in the case ever disputed the fact that she did actually fall down the steps in a fairly spectacular manner. One of the two big questions to be decided in the case was whether the owner of the restaurant was negligent in making sure that the stairs were safe. Negligence in this case meaning that the owner failed to take reasonable precautions that a reasonable person in a similar situation would take.
According to the plaintiff, as she was coming down the stairs with another employee behind her, she noticed that the stairs were covered with water and grease as if someone had mopped the stairs down and then wiped them with a greasy rag leaving slippery black globs of goo on the steps. As she turned to warn the woman behind her, she slipped and took her tumble down the stairs. Did I say slip? What I meant to say was that she stumbled on the slippery slick filmy black gobs of smooth frictionless oily greasy goo covering the steps. Did I say stumble on slippery slick filmy black gobs of smooth frictionless oily greasy goo? What I meant to say was that she really wasn’t sure what happened, but either her foot caught on something on the stairs or she stumbled. In any event, her recollection of the mystery substance didn’t occur until after she’d filled out reports and given depositions that made no mention of water, grease, or any other substance coating the stairs.
“Well,” you say, “maybe the stairs were poorly constructed.” Nope. Even the plaintiff admitted that the stairs were well constructed. The stairs themselves were made of wood with metal along the edges and friction producing surfaces covering them. A hand rail ran along side the steps. “Ah, but the owner of the restaurant should have someone whose job it was to make sure that the restaurant was safe for both employees and patrons,” you say. Oh, I’m sorry, did I forget to mention that the plaintiff was the front manager for the restaurant? In addition to managing the waitstaff her general responsibilities included the day to day operation of the restaurant along with the kitchen manager. In spite of her rather lame reply that she’d brought up the conditions of the stairs at some management meetings and that the kitchen manager normally assigned someone to clean the stairs, she was one of the two people at the restaurant that common sense would indicate would make the decision to assign someone to clean the stairs. [Well, I really think we should get this goo off these stairs, but let me call the owner of the restaurant and make sure it’s OK with him.]
I’m sure at this point you still have a lot of questions about where this mystery goo that was coating the stairs came from (other than being some strange alchemical combination of water and grease). The plaintiff made a big point of noting that the goo on the steps was pretty obvious. [Actually, I should probably stop saying goo (but I won’t) because you might think that black goo would blend in with the steps.] Since it was pretty obvious, we can conclude that it wasn’t on the steps at 8 or 9 in the morning when she came in and went up the stairs to her office to do some accounting. Since the time clock was located up the stairs, most of the employees coming in over the next hour or so had to go up the stairs to punch in. Apparently, either no one thought it important to report black goo all over the stairs to the plaintiff (remember she’s the front manager) or someone quickly got it on the stairs between the times people were going up and down the stairs and our plaintiff decided that she needed to go down the stairs herself.
Now common sense would tell you that the absolute best time to clean the stairs by first putting goo all over them and leaving it there for a while would be early in the morning when you have the most traffic going up and down the stairs. Can you believe that the general manager of the restaurant actually tried to get us to believe that they cleaned the stairs at night on Monday (their slowest day) after most of the employees had left? But I digress. Let’s get back to the goo. Here’s a question for you: you’re one of the managers of a restaurant and one of your employees has just tried to kill you by coating the stairs with goo. Do you (a) find out who it was and demonstrate what happens when their hand is put in a deep fryer or (b) just forget about it. Yes indeed, the correct answer is b.
“OK,” you say, “surely one of the other employees saw all of the goo on the stairs.” Uhhhhmmmmm, no. The plaintiff was not able to present a single witness to corroborate her story that there was water and grease on the stairs. [Actually this isn’t true, but we’ll get to that later.] The defense produced at least three witnesses to substantiate that there wasn’t water, grease, or any kind of goo on the steps. In brilliant cross examination, the plaintiff’s lawyer was quick to note that each of the witnesses had his or her salary paid by the restaurant and thus had a vested interest in committing perjury. [This is as close as the plaintiff’s lawyer got to impeaching any of the defense’s witnesses. Pretty pathetic.]
“OK,” you say, “maybe the other employees didn’t have the same eagle eye for goo that our plaintiff had.” Well, when the plaintiff slipped/stumbled/fell on/through the stairs she was carrying a cash register tray. Needless to say, coins went everywhere. The only other eyewitness to the fall was right behind the plaintiff and once she made sure that the plaintiff was OK she began picking up all of the coins. I don’t remember her mentioning anything about having to wash the goo off all the coins that fell on the stairs.
“OK,” you say, “now that you’ve beaten this stairwell thing to death, where does the wrongful termination fit in.” Actually at this point in her testimony the plaintiff had buried herself so deep that even if she produced a notarized letter from the defendant saying “we’re firing you in direct violation of the Texas Workers’ Compensation Act for hiring a lawyer to represent you against us” it wouldn’t have made any difference. To make a long story shorter (and since I’ve already covered all the best testimony), the plaintiff claims that the defendant made it clear in a phone conversation that she was terminated. The defendant claimed that she was not terminated at that time, but at a later time when she would not make any commitment to coming back to work and would not consult with them on medical decisions related to on-the-job accidents as previously agreed upon in a document signed by the plaintiff. The members of the jury weren’t quite able to understand why the plaintiff thought she was terminated when the defendant continued to pay her insurance premiums for a considerable period of time after the so-called termination phone call.
THE SURPRISE WITNESS
Once your client has incoherently babbled herself into a corner of conflicting statements, you’re in real trouble. Apparently, when the plaintiff’s lawyer was getting his degree by correspondence (from that school that has Sally Struthers as their spokeswoman), the lesson
A Plaintiff’s Guide to Winning a Personal Injury Lawsuit was inadvertently replaced with
A Director’s Guide to Making a Blockbuster Movie. The first rule in the
Director’s Guide is “If you’ve got incredible special effects, your story can be completely incoherent.” The first rule in the
Plaintiff’s Guide is “If you’re going to commit perjury, make sure your story is consistent.” At least this explains why the plaintiff was holding sparklers during her testimony.
It’s really not that difficult to understand. Really. Here’s the deal. Perjury is perjury. Winging your lies doesn’t get you in any less trouble than getting a building full of lawyers to concoct an airtight story for you, hiring Hollywood scriptwriters to spice it up for you, and then having it placed on cue cards so you won’t have problems forgetting your lines when you’re actually giving testimony.
It’s all based on such a simple concept that even now I’m having problems understanding why the plaintiff and her lawyer didn’t get it and spend some time trying to make their lies consistent. When you tell the truth, your story is automatically consistent. People may not believe you. Your story may conflict with falsehoods that others believe to be true. But, at least, your story will be consistent with your representation of what happened and other accepted truths. On the other hand, when you lie, keeping your story consistent can be extremely difficult, particularly if it involves a number of people and events that occur over a period of time. There are all those annoying details of “what actually happened” getting in the way of convincing other people you’re telling the truth.
Anyway, at this point in time things were looking pretty bad for the plaintiff, so it seemed like the perfect time to distract the jury with a surprise witness. The night before, the plaintiff had called a friend of hers that used to work at the restaurant to rebut defense claims that no one saw water or grease on the stairs. Yea verily, this new witness testified that grease was always being tracked from the kitchen onto the stair steps. In fact, the stairs had grease on them everyday. You could always see it glistening. In fact, he was at the bottom of the stairs the day the defendant fell.
“Oh,” you say, “Here’s where that lying consistently thing comes in.” Bingo! To begin with, the surprise witness made no mention of water or goo. He also claimed that the stairs were always greasy which was something that the plaintiff claimed happened less frequently. Worse still, not a single report filled out by the plaintiff ever mentioned that the surprise witness was either an eyewitness to the fall or helped the plaintiff get up once she’d fallen. This guy was at the bottom of the stairs and never mentioned in any of the reports, however, three other people who came to see what had happened when she fell were mentioned in the reports. But wait, it gets better. Upon questioning from the defendant’s lawyer it turns out that this guy is a convicted felon.
THE VERDICT
I’m happy to say that all of the plaintiff’s claims were unanimously rejected. After yelling at the defendant that he was going to BURN IN HELL, the plaintiff took the verdict well. It’s sad to think that this kind of case actually gets tried in the first place. The judge apologized to us afterwards and said that he hoped we didn’t form our opinions on the judicial system based on this case. [He came to talk to us in the jury room.] He said that in cases such as these the loser is directed to pay the costs of the winner so the defendant in this case isn’t hosed for the cost of his lawyers although actually getting the money is another story. Based on what the judge said it may be a good sign that more of these types of cases are being tried since it indicates an unwillingness on the part of defendants to cave in to quick settlement extortion lawsuits.
