The Braille Monitor July 2003
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by James Moynihan
From the Editor: Jim Moynihan is a longtime member of the National Federation of the Blind. He and his wife Jana are active in the Kansas City, Missouri, chapter, where Jim is now a member of the board. The couple have two almost-grown children. In the following story Jim reports on his experience as a member of a jury. As a federal employee he was allowed to take administrative leave to perform his civic duty. That meant that he could continue to draw his salary and was therefore required to turn back his juror's pay of a princely $6.48 a day. No wonder serving on a jury is a financial hardship for many people. Here is Jim's story:
I have often wondered what it would be like to serve on a jury, and I finally got my chance on August 5 and 6, 2002. After receiving my summons to serve, I reported at the courthouse in downtown Kansas City, Missouri, at 8:00 a.m. on Monday, August 5, 2002. When I reached the desk, the clerk told me that I was excused. When I asked why, she said, "because you are blind."
I informed her that I did not wish to be excused on the grounds of blindness and would serve if selected. The incredulous clerk directed me to the room where the panelists sat waiting to be culled for jury duty. The lucky twelve would be selected for the jury, and the rest would be sent home.
I assumed that I did not have much to worry about since I would not be selected. I completed the form telling the judge and attorneys for the prosecution and defense that I was a civil rights investigator working for the U.S. Department of Education, Office for Civil Rights. Knowledgeable coworkers had told me that I would automatically be rejected for jury selection because attorneys did not want people on the jury who could separate fact from fiction. Attorneys want dummies who might be persuaded in favor of their client.
During the next few hours I tried to read Syndicated Columnists Weekly, attempting to blot out the loud television programming. Then about fifty of us were sent to the room where the jury selection process began. We were told that this case concerned the XO club. A woman had fallen and had then filed a personal injury lawsuit. This information immediately set my teeth on edge.
My detestation of lawyers is exceeded only by my revulsion at the frivolous lawsuits filed by whining plaintiffs that are clogging our court system. So much for that noise, I told myself. Then the lawyers began explaining the details of the case, so I decided that I had better listen.
The woman, in her twenties, was employed as an airline attendant. She was socializing with a group of friends at a nightclub in Westport, and the rest of the group left. She struck up an acquaintance with a young man, and they shared several cigarettes--the regular kind. They decided to go to the XO club, which specializes in dancing and serves drinks.
The couple danced for a while and then decided to have drinks, which were served upstairs. When they reached the landing, they came to a ledge, which overlooked the dance floor. The building had been inspected, but the ledge did not meet building code and should have been eighteen inches higher.
Somehow the woman fell over the edge, and, though the man tried to stop her from falling, he was not successful. As a result the young woman suffered a broken wrist, a broken shoulder, and a broken pelvis. She also incurred an indentation on her left hip, which is permanent.
I do not recall all the details, but I think she had about $6,000 in medical expenses. She was cared for at her mother's home and returned to her airline attendant's job a few months later. The plaintiff then moved to California and has a live-in boyfriend, who fathered her child, now about a year old.
The plaintiff sued the XO club and also the building's landlord. Fellow jurors informed me that the landlord slept through the trial, but he was represented by an attorney who spoke on his behalf.
The attorneys for the plaintiff and the defense questioned the panelists to make the jury selection. We were asked whether we knew any of the doctors who had treated the plaintiff for her injuries. I was surprised to find and acknowledge that I knew the orthopedist, who treated my daughter Jeanene after she jumped from a trampoline, injuring her knee.
One of the attorneys for the plaintiff referred to my occupation as a civil rights investigator and asked me if I thought too many lawsuits were being filed. I agreed that there were too many lawsuits, but I had learned that in my job my opinion did not matter. In fact, a supervisor once told me she did not give a damn about my opinion. My training required me to keep digging until I was satisfied I understood the facts of a case so thoroughly that I could explain it to team leaders and attorneys. After that response I thought to myself, you're a goner.
The questioning continued until the judge finally pounced on one unlucky soul, observing that this man was the only panelist who had remained totally quiet during the selection process. The judge commented that nature abhors a vacuum. The judge asked this man if he thought there were too many lawsuits, and he agreed that there were. He then asked the man if he could keep an open mind if he were selected, and he said that he could, to a point. I was not surprised when this man was not selected.
The judge told us to go to lunch and report back at 1:30 p.m., when we would be told whether or not we would be on the jury. This gave me the opportunity to eat lunch with my wife Jana in the federal building cafeteria. The judge admonished us not to discuss the case with each other or with outsiders.
When I returned from lunch, I was surprised to learn that I was one of the twelve jurors selected. The judge admonished us not to discuss the case until it was time for the jury to deliberate. The trial would begin that afternoon and conclude on Tuesday, he hoped. It might continue on Wednesday with the jury handing in its verdict that day.
The trial was straightforward, and the facts were not in dispute. The plaintiff and her attorneys agreed that she had been able to return to her occupation as a flight attendant but had to be careful lifting bags that might weigh up to seventy pounds.
The plaintiff said she was living a normal life but sometimes experienced pain in her shoulder when putting on her seat belt or doing other tasks. Her attorneys stressed that the indentation in her hip was a permanent disfigurement. They asked the jury to award her $125,000 for punitive damages based on her injuries and medical costs. Now here comes the kicker. They also asked the jury to award an unspecified amount based on the plaintiff's pain and suffering because she had endured pain and humiliation and has a permanent disfigurement, which for a woman is devastating.
The defense did not dispute that the plaintiff had fallen at the XO Club and had suffered injuries. The XO attorneys said that of course they were sympathetic but that the injury to the plaintiff was not their fault. She had been drinking before she arrived at the XO Club, but they did not say she was drunk. The building had been inspected and was given a certificate by Kansas City.
Thousands of patrons had observed the ledge, but it had not raised any questions about safety. The violation of the building code became a factor only after the shallowness of the ledge was discovered by engineers hired by the plaintiff's attorneys during the lawsuit. The implication was, okay jurors, give her something, but don't go crazy on us.
The trial ended late Tuesday afternoon. I wanted to get started, but a number of my companions required a smoke break. We all agreed that the plaintiff should get something; the question was how much. Being a conservative fellow, I threw out a figure of $50,000. I have often been astonished to read of smokers or people paralyzed in auto accidents being awarded settlements in the millions of dollars. I could never fathom how this happened, but I was soon to find out.
Several jurors maintained that this woman had suffered a devastating injury and that no price tag could be placed on her pain and suffering. One juror suggested a figure of two million dollars. Some of us pointed out that she had returned to work and was leading a normal life. The jurors expressed their opinions strongly but remained goodtempered throughout the deliberative process.
The jury foreman went around the table trying to reach a consensus. Pressure was building to wrap things up on Tuesday to avoid continuing to deliberate on Wednesday. I was enjoying myself and was not averse to continuing on Wednesday. The Department of Education was paying my salary, but I had to return my $6.48 per day jury stipend.
Other members of the jury were not being paid for taking off work to serve on this jury. I was impressed that these citizens were making a real sacrifice to serve.
We finally reached a consensus that the XO club and landlord were guilty. We agreed that the plaintiff should receive $120,000, which was close to the amount requested by her attorneys. I believe that most of us were reasonably satisfied. I thought the settlement was somewhat excessive but was pleased that we had avoided the astronomical sums suggested by some of the jurors.
We repaired to the courtroom, where the jury foreman handed in the verdict, which was read by the court clerk. The expressions on the faces of the attorneys for the defendants indicated that they were not happy. But I believe that one of the treasures of our democracy is the right to a jury trial. It bothered me that the clerk was willing to excuse me from serving on a jury based on blindness, and it shocked her that I wanted to serve if selected. Yet other citizens are expected to serve on juries unless they come up with a legitimate excuse. We all know that blind people are excused from working because others expect that society will take care of us.
I was impressed that the people on my jury took their task seriously. They grappled with the issues presented by the attorneys and tried to arrive at a fair and equitable solution. We came from all walks of life and had never met before. We were of different races and levels of education. We tried our best to hammer out a reasonable and fair settlement. We even accommodated the smokers; how about that?
The XO case will probably not be remembered as a monumental case in the annals of legal jurisprudence. Thousands of such cases may be heard across America every day by average people like me who serve on juries. Sure beats Communist China, Cuba, North Korea, Iraq, or Iran. I would do it again if called upon. You can turn me down for any of a number of reasons, but don't let my blindness be one of them.
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