EP 502- Jury Nullification Part Two

Episode Notes

Transcript

Speaker 1:

Welcome to The. Jury. is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm Tim Cronin personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth

Erich Vieth:

Welcome to another episode of The Jury’s Out. I’m Erich Vieth.

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m John Simon.

Erich Vieth:

We’re back With part two of jury nullification. So John, one thing you said I think is that the common thing that binds all the articles I read in the last couple days, you cannot tell the jury they have the power to ignore the law or the facts. You can’t tell them that no court, no modern court will ever allow that.

John Simon:

I hope I’m getting this correct. I might not have it exactly right. I believe it was Tom Strong who we’ve had on the podcast who’s considered one of the best attorneys in Missouri ever. And I think there’s a case out there where it was against a utility company, an in closing argument. He told the jury there’s nothing in these instructions that require you to be fair to the defendant. Okay, but that wasn’t a nullification arm, that was instructions. Don’t say that you need to be fair. So you’re right. I mean the words, it’s not what the words say, but it’s what they don’t say. Also, and by the way, I think the court in that case said he was okay saying that in that case, but said probably not a good idea to do that. Again going forward

Tim Cronin:

To try to get out, there’s so many different ways that this is done without directly saying ignore the facts and ignore the law to the jury. Because I think most lawyers hopefully understand you’re going to probably get in trouble with the court if you do that. So we file typically as our last motion in li, at least I do in every case, and especially med mal cases. It starts like this and then it gives a list of particular examples that I think may be said in that particular case and we can go through some of ’em and talk about ’em. But courts should exclude any evidence or argument that seeks jury nullification, otherwise suggests the jury not follow the law or invites the jury to decide the case on some other grounds than the law and the evidence. And that last one leaves a lot of wiggle room where I try to identify things And then

John Simon:

Do you put specific examples in your motion? Correct.

Tim Cronin:

What are they? So then I define jury nullification from black’s law dictionary and then it happens in civil and criminal cases. Some particular examples, med mal cases, you mentioned this already, that the defendant is a good doctor or a good hospital with a good reputation. We hear that one all the time. That is characterization as a good doctor has nothing to do with what the plaintiff is alleging in this case or what the doctor did in this specific case, arguing that he or she shouldn’t be held liable because there a good doctor is a relevant character evidence and it is an invitation to the jury to not follow the court’s instructions.

Erich Vieth:

Does a punitive claim affect that at all?

Tim Cronin:

Not really, because what does that mean? They’re a good doctor or a good hospital If they do that, I get to introduce every medical malpractice case that has ever been filed against them. Any verdict that has ever happened against them. I think if punitive damages open up things certainly, but then it depends how you argue ’em and you better make clear what instructions.

John Simon:

It has to be the conduct has to be related

Tim Cronin:

To what’s related to what the case is about because that’s what you’re saying. What they did in this case was a conscious disregard for safety or reckless or whatever the standard is. Just saying he’s a good doc. I mean how can you disprove that other than, okay, well let’s pull out all the Google reviews. I don’t know what to

John Simon:

Do. For instance, we had a case with Punitives and it was a product liability case and the company that we had sued had all kinds of trouble with the government. They were under government investigation. The government actually had fined them for knowingly selling defective products and so on and so forth. And we had punitives in the case and none of that came in initially it didn’t come in, but the defense attorney spent a lot of time talking about they had the corporate rep on the stand, what a wonderful company this is and all the good things and the door was wide open and we got to get it in. But initially the bad conduct has to have something to do with the issue in the case, whether it’s the same product or failure to test or something like that.

Erich Vieth:

Your point reminds me of that federal rule on character if you want to, there’s a prohibition, you can’t introduce character to show that someone act in conformity with that

Tim Cronin:

Character. And that’s what that is.

Erich Vieth:

That’s what they’re trying to do. They’re trying to say he’s good, therefore he must’ve been good in this case,

Tim Cronin:

Which is jury nullification. I mean

John Simon:

Argument. We can’t say that the doctor was sued two years ago for the same thing, so was negligent so he was negligent in this case, we’re not allowed to do that.

Tim Cronin:

Another one, and we brought up this one up earlier, that the defendant tried their best or they can’t be expected to be perfect. That’s not the standard set out by the law for what constitutes negligence or a breach of the standard of care. Trying one’s best is not enough to meet the standard of care. It’s irrelevant to whether the standard of care was met at any suggestion otherwise cannot be allowed because they’re telling them not to follow what the definition is for the stand.

John Simon:

You brought up this, we can’t be perfect and I had a med mal case where the defendant doctor on the stand said, we can’t be perfect. We can’t be perfect. Yeah. And it was funny because we took a break after that and I was out in the hallway with the bailiff and the bailiff came over to me and said, you know what? If they’re doing surgery on me damnit, I want ’em to be perfect.

Tim Cronin:

Yeah, it kind of blew up.

John Simon:

Right, exactly.

Erich Vieth:

So there’s this colloquial idea of negligent, it’s like sloppy doesn’t give a shit and versus takes care tries hard. There’s this colloquial thing. I can see why they’re trying to make that argument

Tim Cronin:

Instead of what it actually is is a medical doctors come in and say what is supposed to be done in a particular set of circumstance when you do this surgery, you make sure you identify this part of the anatomy before you put a stitch in so that you don’t injure someone.

Erich Vieth:

That’s why we have standard of care.

Tim Cronin:

Well, I mean they were trying their best. Whoa. That’s nothing to do with anything.

Erich Vieth:

That’s why we have standard of care. So we don’t have this general try as hard good guy, that kind of thing. We talk about what you’re supposed to do, what a reasonable doctor does in this circumstance. And so now we’re not talking about whether he or she is a good doctor or parent or whatever

John Simon:

Driver. So I think we could solve all of this by just abandoning all the instructions. Just throw them all out and give one instruction at the end and tell the jurors, so what do you think? Yeah, that’s it. Well

Erich Vieth:

Let’s push

Tim Cronin:

That in which case then I get to say whatever I want.

John Simon:

So what do you think or do what you think is right.

Erich Vieth:

Alright, you said it. So what would happen, and most of your cases do you think if you didn’t instruct and you said, okay folks,

John Simon:

I’d like to believe that it would make a big difference that we have specific instructions that jurors are supposed to follow, but I think overall it probably wouldn’t make that much of a difference. Yeah, I agree. Because if the juror jurors hear your story and they’re not going for it, it doesn’t matter when they get these instructions at the end, if they don’t like the case, if they don’t see your cause as being just and fundamentally fair what you’re asking for, you’re not going to win the case. They made up

Tim Cronin:

Their mind before they

John Simon:

Get the instructions. You are not going to win that case unless the jury at the beginning believes your cause is just what the defendant did was not proper. It was unfair. And that’s why it’s not just the fact, it’s how you frame this stuff too. That’s why all that stuff is so important. If it wasn’t, we wouldn’t need to be there. We could just give ’em the evidence in written form and let ’em decide what they want to do.

Tim Cronin:

Here’s another one, and this one’s a little bit less clear to me. It just kind of drives me crazy. I hear it all the time when there’s really, really bad injuries. Well, bad outcomes don’t necessarily mean negligence and that to me is just an attempt to distract the jury from the actual standard for negligence. And I suppose we can just, it’s kind

John Simon:

Of like this shit happens.

Tim Cronin:

Yeah. I usually respond with, it gets asked either of my expert or their expert and I go, do you understand that we are not claiming this is a bad outcome unrelated to negligence? You understand that right Doctor that we’re claiming it was a horrific outcome as a result of egregious negligence. You get That’s what we’re saying and the instructions are going to, but I mean I guess it’s technically true. Bad outcomes don’t always mean negligence.

Erich Vieth:

I want to put my defendant cap on. So are you saying that because it’s a bad outcome that it was negligent? No. So they’re trying to say, well, I’m just saying an obvious thing

Tim Cronin:

Here. It’s a way of saying you can’t decide it on sympathy, which is true, but it just, I’m not saying, I’m not telling the jury not to follow the law and you’re suggesting that I am. Here’s one that we hear in a bunch of different ways. I just listened to the closings in your case from a week or two ago and it was absolutely said that medicine or surgery is really hard. This is really complicated. You were called a wordsmith, which I found hilarious and of oversimplifying it.

John Simon:

That was the best compliment I’ve ever gotten in a closing argument to tell me that I’m oversimplifying things for the jury in a med mal case. Yeah, no, that was, thank you. And

Tim Cronin:

It’s the fact that something is or is not hard has no impact on whether it was negligent. It’s an attempt to convince the jury that there’s no such thing as negligence. If you’re doing something that requires a high degree of skill. If you’re a doctor, that’s clearly not what the law says. Acting as a doctor performing surgery would be extremely difficult or impossible for any person who did not spend their lifetime of education and training, learning how to do it. Hence, you can’t do it unless you’re licensed to do it. So the standard is that a provider needs to use that degree of skill and learning, et cetera, et cetera. They’re judged against those in their own profession and making that argument. It’s basically like who are you to judge them? It is explicitly inviting them that to follow the instructions and we hear it. I mean we hear that one every time.

John Simon:

I like the argument that there was blood during the surgery.

Tim Cronin:

Yeah, that was a particular good one. He couldn’t see it. There was blood.

John Simon:

I was like, is that unusual?

Tim Cronin:

It was a C-section there. Do you normally not see blood? Who were you doing c-sections on, right?

John Simon:

Yeah. I mean I want to know how many you’ve had where you didn’t run into any blood.

Tim Cronin:

One you mentioned earlier that they did not intentionally try to harm plaintiff. That’s not what the breach of the standard of care requires. It’s also not the standard for punitive damages most of the time. I mean, I understand if you have a punitive claim, you probably get to say that, but the punitive standard isn’t actually required intentional conduct that is an option for punitive damages. Plaintiff’s outcome was in God’s hands. Canon law,

John Simon:

They’re blaming it on God, ladies and gentlemen. Yeah.

Tim Cronin:

No religious arguments or references should be made suggesting an outcome was determined by God’s will is a direct plea for the jury to ignore the law. I haven’t actually seen an attorney do that, but I’ve heard witnesses say it in depos and then I promptly file a motion and eliminate the

Erich Vieth:

Secular version of that is bad things. Shit happens, I guess, right? Sometimes the universe just has things happen,

Tim Cronin:

Right? And it’s like, well no, but they’re here to decide if they thought it was negligent under the instructions. Not to say shit happens there. Shouldn’t that say there shouldn’t be lawsuits argument, right? That because defendants healthcare providers try to help people including the plaintiff, they cannot or shouldn’t be held liable. We hear that all the time. They don’t say the last part of that sentence, but doctor, why did you get into medicine? I want to help people. Okay. Or I mean maybe because you thought it was a more lucrative career than some other choice. I mean there’s other reasons. I

Erich Vieth:

Mean that would open the door if that were appropriate. We could spend hours talking about who’s better and who’s good and who’s decent and kind.

Tim Cronin:

Yeah. That defendants continue to treat this plaintiff because they care about him. That’s one that I’ve heard before. And then just generally suggesting the jury disregard the law, questioning the fairness and morality of the law, criticizing the civil justice system or med mal lawsuits as being bad for society, bad for insurance rates, calling by referring it to it as a lottery system. And then there’s ones that are really case specific. And this was an issue we’ve had in cases we’ve worked on and one that you had in your most recent case, John misrepresentations of plaintiff’s actual theories of liability,

John Simon:

Right?

Tim Cronin:

Is a method of jury nullification, right? Making straw man arguments. It involves time consuming testimony that certain decisions or treatment were within the standard of care when they’re not the theories of negligence that plaintiff is pursuing at trial or submitting to the jury to drown out what you’re actual cases about

John Simon:

What’s in the instructions. And again, this isn’t particular to a case, but as an example, if your allegation is that the defendant doctor put a stitch through something that they shouldn’t have stitched when closing up in a surgery, the question becomes they’ll spend 30 minutes on the decision to have the surgery and that was appropriate and they did this and that was appropriate

Tim Cronin:

This amount of time with the plaintiff before the surgery.

John Simon:

I’ve had a case where the issue was what happened during a surgery period, and maybe it was my fault, they should have more strenuously objected or repeatedly they spent an hour with all the treatment and interactions they had with my client leading up to the surgery, the office visits and everything else and how they cared about ’em. And it is, it’s a straw man. It’s strong. We weren’t negligent when we did this. We weren’t negligent when we did this. We’re not claiming that you are. We’re claiming that this very specific, right, exactly.

Tim Cronin:

So it wastes time. It misleads and confuses the jury about what the case is about. It drowns out information relevant to the theories being pursued. It creates hypothetical claims we’re not submitting on and then disproves them, which is a straw man argument. And it’s Missouri courts and I think just about every state courts say that is not proper to erect strawman and their arguments to the range of issues properly before the jury. It’s not permitted to devise hypothetical defenses or hypothetical claims and then destroy them irrelevant alternative and alternative possible causation testimony. It’s another issue you

John Simon:

Have, especially when you have the defendant’s admitting that the negligent conduct contributed to cause your client’s injuries and damages. And then what it’s distorting the standard on causation when they argue this also caused it or this contributed, it doesn’t matter if eight other things contributed as long as their negligent conduct contributed to it. It’s the end of the story. And

Tim Cronin:

It happens even without trying to tie risk factors, generalizations about possible correlations of other things that can result in this injury where not even their own experts can say any of those contributed. They just throw out 19 other things that can result in a particular injury when it’s not evidence that it contributed to this injury. And in fact, there’s no dispute about what did contribute. I’m

Erich Vieth:

Going to try to put my defendant cap on again. So I’m just trying to isolate what is being talked about and what’s not being talked about. Yeah. So the jury can focus on the one thing and you’re seeing that all that work around the periphery, all the things that did not cause it as distracting and attempting to use those to say we’re basically we batted 900,

John Simon:

Even getting to the point where they’ll list 10 things that could cause it and admit that eight of ’em don’t exist in our case

Tim Cronin:

And yet they

John Simon:

Spend time and they spend 45 minutes on it or more than that because they revisit it with more than one witness. And that’s just trying to confuse the jury and really have them not follow the instruction on causation on the contributed to

Tim Cronin:

Cause listing a parade of other possible contributions or risk factors while ultimately admitting causation under the standard. And the jury instructions is an attempted jury nullification. Even if they don’t admit causation, you still can’t list 20 different risk factors if they do not have a doctor that can say all of these did contribute to

John Simon:

Cause this. So let me ask you this Tim, how well that motion that on jury nullification that you say you include in every one of your cases, how well is that received by the courts?

Tim Cronin:

By the time we get to it, the court is exhausted generally, so maybe I need to move it up. Usually what happens is defense Counsel says, well, we would never make any jury nullification arguments. We don’t need to take this

John Simon:

Senate gets granted.

Tim Cronin:

I go, is it granted? And they go, well, no. I mean I don’t think some of these are jury. And I went, right. That’s why I gave the example. So I would like to talk about them. And what usually happens is some judges have said, well, I’m certainly not going to allow any jury nullification arguments. We don’t need to go through each of these. If you think you hear one, then you need to make an objection. Or they’ll go through and say, Counsel defense Counsel certainly, and pick out seven out of 10. You agree you definitely can’t do this. Yeah. So I’ll grant that for those subparts by stipulation for the other ones. I’ll have to hear exactly how it’s argued. And so usually it’s granted in part, but I’m highlighting it for the judge.

John Simon:

Most this happens. It happens a lot. And there are things you can do about it. And one of ’em is exactly what we’re talking about. And that is to identify what these possible arguments are going to be unique, just general in general that we see, and then the ones that are unique and specific to your case. And then put those in a motion and eliminate.

Tim Cronin:

So we’ve given some examples that we encounter particularly in mad mal cases of attempts that jury nullification or things that can result in jury nullification, whether there’s a deliberate attempt being made to do that or not. I’m sure there’s dozens, hundreds of other examples in different kinds of cases on both sides of the aisle and in criminal and civil cases. And the fact is that the jury has the power to do it. The point is you need to be on the lookout for it because attorneys shouldn’t be allowed to encourage

John Simon:

It. Right. And I think the key thing that you just said was you need to be on the lookout and don’t wait until trial for this because you’re going to see it in the depositions. You’re going to see it in their experts, the defense experts depositions. You’re going to see it when your own experts are being cross examined. You’re really going to see it when you take the deposition of the defendant, the doctors, because they’re going to be all over it. And so in the workup of the case, as you see these arguments, jot ’em down. They’re coming, we did our best. We’re highly trained and all of this stuff. So it’s not just filing a motion in limine. You need to identify the specific issues during the workup of the case. Cite to them, right? Cite to them. That’s really powerful. If you can pull out a deposition and say, see, judge, this is it right here.

They’ve said this eight times with three different witnesses. You really need to keep an eye out in the workup of the case and more important during the trial, listen, listen, listen, closing and opening, all of that so that you need to be prepared during the trial to get up at the SideBar and let the judge know they’re making this argument. We did it at the last trial where they started talking about things that happened before the surgery. And the whole case was about what happened during the surgery. And I try not to object a lot, but I was up at the SideBar a couple of times saying, judge, we’re talking about stuff that happened. It was like a few days before the surgery and we got rulings on it. We won those issues because we had alerted the judge to it from the beginning.

Tim Cronin:

So thank you for joining us again. This has been another episode of The. Jury is Out. I’m Tim Cronin.

Erich Vieth:

I’m Erich Vieth

John Simon:

. I’m John Simon. We’ll see you next time.

Speaker 1:

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