Mary Rosenblum: One Good Juror

Erin had one remaining challenge. There were two people left in the jury box, a man who was a senior partner in a large structural engineer-ing firm and a young woman who worked in a body ornamentation shop. The man’s answers to both lawyers’ questions had been deliberate, thoughtful. The woman had answered more spontaneously; she definitely seemed more malleable and subject to emotional appeal.

“We should dismiss him.” Erin started to rise.

“No,” Ephraim whispered back. “I want to dismiss her. ”

She stared at him, shook her head a minute distance. “You don’t want him, believe me.”

“Ms. Mendel?” the judge said.

“Yes,” Ephraim said, “we do.”

“I don’t have time now to tell you what occupational categories, body language, and personality types can mean to your case. It’s enough that he’s an engineer—all he probably knows is how to think logically. And he’s going to know it’s hard to make anything safer without spending money.” Ephraim was nodding his head as if he agreed.

“I think he’ll make a good juror,” he said as she started to rise. Then he looked directly at her, with those eyes that still showed no tint of blue to wash out the gray, even under the direct overhead lights. “Whose decision is this?”

She couldn’t believe it. Consulting the client was usually just a formality; none had ever overridden her recommendation on a point of trial strategy like this.

“Ms. Mendel.” The judge’s voice had shifted to the severe edge, and Erin saw her hand move toward the spectacles. The situation was already absurd; if Erin had to watch those waving spectacles contort that face again, she might not be able to stop from laughing.

Erin swallowed, stood upright, and dismissed the young woman. Please, please, bump that man, she prayed, as the judge looked at Clark. If Clark did so, the judge would have to bring in more jurors. No one could be as bad as this guy.

“NeuroTek waives its last challenge, Your Honor. We’re satisfied that Mr. Calendri is quite qualified to serve as the juror on this case.”

I’ll bet, Erin thought.

“Very well, we have a juror,” the judge said. “It is now 11:37 A.M. We will adjourn for lunch, reconvene here at 1:00 P.M. Counsel will then give opening statements, and we will receive the testimony of plaintiff’s expert, Dr. Singh.”

At lunch in an underground cafeteria, Ephraim wanted to talk but Erin cut him off.

“I have to work on my opening and questions for that neurobiologist your last lawyer hired,” she told him. “Believe me, we will talk at the end of the day.”

“Why do you say it like that? ‘Neurobiologist your last lawyer hired’? Derocher said Dr. Singh is a leading expert in his field.”

“Maybe he is. But one, he’s Indian, so he speaks English as a foreign language. Two, he’s never, ever testified in court, and three, I tried to work with him yesterday and he’s hopeless. I don’t think he gave a straight answer to a single question. He’s only any good to me—to us—if he can communicate his expertise to the juror.”

She turned from her work and looked fully at him. “You have to understand something, Ephraim. Derocher only hired Singh to get an opinion that might convince NeuroTek to settle. When NeuroTek didn’t blink, Derocher bailed out. A lawyer doesn’t make money on a contingency case unless he wins or gets a settlement. Do you understand exactly what I’m telling you?”

They were silent, and she was immersing in her work again when he said, “He said I should take their offer.”

“What?” Part of her attention came back to the table.

“Derocher. NeuroTek did offer to settle, but it wasn’t much. And they wouldn’t admit anything or agree to recall their product. I said no.”

“You turned down a settlement offer on this case?”

He nodded, with no trace of apology. “I’m pretty well broke, trying to pay all my medical bills, but I really don’t care about the money. Derocher once said that if NeuroTek ever loses just one of these cases, they would face unlimited liability because everyone else could use the defective product finding against them. So they’d have to settle with the other injured people and recall the implant to fix the interface. Is that true?”

“Yes, it probably is,” she told him. “But let me get this straight. You won’t settle for anything less than total victory—and you do just about everything possible to ensure that your lawyer can’t win? That’s wonderful.”

He started to speak, but she raised her hand and turned back to her work. Artists, she thought. Never again.

At 1:02 P.M., Erin started her opening statement of the case from the counsel’s podium, and she did not proceed far before she realized how inadequate it would be. This was her first and best opportunity to tell the juror Ephraim’s story and she could not even begin it because she barely knew it herself. Oh, she could talk about the memory loss and the medical cause and the grim prognosis. But she couldn’t talk about Ephraim or what the loss of himself really meant. Dr. Singh arrived and took his seat in the middle of her statement, and she was grateful for the interruption. She could tell the juror was too.

When his turn came, Clark talked about the law, the undisputed facts, then the law again. He reminded the juror that it would be his duty to follow the law, as the judge instructed.

Dr. Singh was a small, dark-complexioned man, whose eyes kept darting to the media representatives in the spectators’ seats, as if they were a firing squad. He did speak English, of a sort. The court translation program only had to explain his testimony a few times, in an androgynous monotone.

She tried to relax him by first covering his personal background, easy questions to start him talking; but he misstated both his marital status and the number of his children, correcting himself each time with profuse, stumbling apologies. She managed to pry out enough of his credentials to qualify him as an expert, but she had worse luck when she tried to elicit his key opinions. Again and again, she began over, rephrasing her questions; he would assume an air of authority and commence a lecture on some other point.

“Doctor,” she finally tried, in desperation, “don’t you believe that the wetware interface could have been designed to absolutely prevent any memory damage, without significantly increasing the product’s cost?” She was sure this leading question would earn her a sanction from the court, once Clark objected. But he remained seated, clearly enjoying the spectacle the way it was unfolding.

Singh peered at her. She hadn’t once managed to get him to look at the juror. “Of course, wetware interface can be designed in several ways, and, most unfortunately, I do not know how they all cost.”

They were going in circles. She would never get him to express clearly the opinion that was needed to keep the judge from directing a verdict dismissing their case. The juror was watching with an amused expression, and the judge wouldn’t allow this to go on any longer. She sat down.

Then Clark stood up for his cross-examination and—amazingly—saved them, from a directed verdict at least. He brought out a few minor points, showing that Dr. Singh was not board-certified in neurobiology in the U.S., how his views were in the minority of his field—and then asked the question he should never have asked.

“Just so it’s clear to the juror, Dr. Singh, you’re not actually saying that NeuroTek could have improved the safety of its implant at no additional significant cost, are you?”

Dr. Singh peered intently at Clark for a long moment. Erin felt her heart begin to seize up. Dr. Singh cleared his throat.