Blogging jury duty: Day 6

Over the weekend we go to a local book store and happen to see Juror 7 there.  We buy a few children's books.  We do not discuss the trial.

Deliberations

We deliberated for about five hours. We were careful to make sure that everyone's views were heard and respected.

A few things we noticed during deliberations:
 - the photo of the tailpipe in the bumper is less impressive close up--the bumper material appears to be made of plastic or other soft material
 - the motorcycle in the photo looks undamaged (there are several bikers on the jury)
 - the actual helmet is also unconvincing--all we can see is that the paint is scratched off

Burr's credibility had been so damaged during the trial that several jurors were even skeptical of the Sturgis motorcycle story. Why did the evidence include a picture of Burr at Sturgis, but none of him en route? Why were there only two receipts from the trip?

This is what we decided to award:

	Plaintiff	Defense	Jury
Past lost earnings	$82,500	$19,422	$19,422
Past medical bills	$45,360	$45,360	$45,360
Lost future earnings	$482,384	$0	$20,000
Future medical bills	$937,530	$15,000	$20,815
Past pain and suffering	$500,000	$50,000	$50,000
Future pain and suffering	$9,000,000	$50,000	$25,000
Loss of consortium	$1,000,000	$17,900	$15,000
Punitive damages	$240,000	$0	$65,000

We argued over each of the numbers, but the difference between the lowest and highest number was never more than $100,000: the plaintiff had failed to convince any of us that a million-dollar settlement was justified.

On a couple of items we actually awarded less than what the defense offered--they had put on such an effective case that we thought they had left money on the table.

There was much discussion on the topic of punitive damages.  The law requires "oppression, fraud, or malice."  We rule out fraud or malice, but one of the definitions of "oppression" includes "despicable conduct."  We agreed that drinking and driving, week after week, qualifies as despicable conduct.

We add up the numbers: it's a little over a quarter of a million dollars, and about $65,000 more than what the plaintiff offered. We all agree this seems reasonable.

Delivering the verdict

There's much talk of juries and eye contact. I wasn't able to bring myself to look at either Poe or Burr, even for journalistic purposes.

Kent asked to have the jury polled on the issue of compensatory damages. One by one, we each confirmed our decision.

For his part, Biegler apparently didn't believe that we had awarded punitive damages, and asked to have us polled on that issue.

Post-mortem

After the trial, the lawyers were eager to talk to us and get our feedback about what worked and what didn't work. In return, they shared a lot of the information that we were restricted from learning about during the trial.

The document that the plaintiff tried to introduce during the Stearns testimony was a letter from one of the treating physicians that suggested that Dr Torres might have made a mistake and overlooked a head injury.

All compensatory damages are covered by the insurance company. So Biegler was actually hired by Allstate. Punitive damages are paid by the defendant (and you can't escape them by declaring bankruptcy).  That is why the plaintiff front-loaded the pain and suffering amount and minimized the punitive damages--they didn't think Poe would have the money for the punitive damages.  I think the jury instruction that one may not award damages "in excess of the defendant's ability to pay" is confusing and misleading. (Biegler took advantage of this very effectively.) And the distinction between compensatory/punitive damages is a matter of law which is not specific to a particular case--it seems perverse that we're not supposed to know this.

Harold Poe served no jail time for his felony DUI conviction. He received a suspended sentence, spent six months in a drug and alcohol treatment facility, and is under strict probation for the next 5 years.  He has to submit to regular blood tests to ensure he remains clean and sober. A Google search turned up:

State Bar #XXXX, San Jose (July 7, 2009).

Poe, 40, was placed on interim suspension following his conviction for operating a motor vehicle while under the influence of alcohol or drugs, a felony. The interim suspension will remain in effect until further order by the State Bar Court.

The order took effect August 7, 2009

Other than that, I can find no information on the accident or the case online.

Blogging jury duty: Day 5

Bad news. There's going to be one more new witness.  I had been hoping all week that we'd be ready to start deliberations by noon.

Dr Stearns

Stearns is an orthopedic surgeon, and a former navy doctor.  He has brought copious typewritten notes, and his answers are usually read verbatim from them; his testimony is thick with medical jargon.

He describes in detail the tests he did on Burr, and time after time the same phrase comes up.

Biegler: "What do mean the patient exhibited 'symptom magnification'?"

Stearns: "This particular test does not involve moving the spine; the injured area is not under duress. There is no reason for the patient to feel any pain."

Stearns contends that Burr should have been mostly better in 6 weeks, and fully recovered in 12 weeks. Burr's fractures of the spine, taken individually, are simply not major injuries.

Biegler makes one final point with Stearns:

"What did Mr Burr say when you asked him if he had any history of back pain?"

"He declined to answer on advice of counsel."

"What about neck pain?"

"He declined to answer on advice of counsel."

"When you asked him for his medical history, what did he say?"

"He declined to answer on advice of counsel."

"And isn't a complete medical history an important part of making an accurate diagnosis?"

"Yes it is."

On cross examination, Kent draws Stearns' attention to a document which they sent to Stearns.  Kent tries to bring the document into evidence, but Biegler is on his feet.

"Your honor, I thought we had a gentleman's agreement about what we could and could not admit as evidence."  He seems very disappointed in Mr Kent. "Apparently we do not." The objection is sustained; we're blocked from seeing the document.  Kent tries another tack; he brings the document up to Dr Stearns.

"Do you recognize this document?"

"No, I don't."

"Do you remember receiving it from our office?"

"No."

"Let me turn your attention to page three.  Can you read..."

Biegler objects.  Kent tries again.

"Are you familiar with the delivery of legal documents..."

Again Biegler objects.

Kent is visibly flustered.  He's stuck. Until now, most objections have been handled by the other lawyer shuffling some of his words around. This is the first time during the trial that we've seen a line of questioning completely blocked by a legal maneuver.

"Your honor, can we--can we take our morning break early today; it's almost 10:30."

Biegler, unwilling to give Kent a 15 minute break to regroup, calls for a sidebar. Judge Kirwan tells us to take a minute to stretch.

For their sidebars, the Judge and lawyers have been huddling in the corner farthest from the jury box--but it's not really that far. If I pay attention, I can probably make out what they are saying, but we've been expressly forbidden from using any information like that, so I turn around to avoid the temptation.

"You know, it really makes a big difference to have a nice judge," says juror five behind me.

The woman to my right, juror ten, agrees. "Yeah, I heard from a juror on another case that their judge doesn't let them hang around outside the courtroom during breaks--they have to go all the way downstairs to the waiting area."

"Wow."

"And he doesn't tell them where to find the good parking."

I have a suggestion: "When the week is over, I think we should get Judge Kirwan a Target gift card."

"No, no, no, no, no," says the woman to my right. "Let's get him a Subway card.  Everybody loves a Footlong."

The sidebar is over. Judge Kirwan tells us that we will indeed take our midmorning break early.

When we return, Kent is brief.

"Dr Stearns, it is your contention that 6 weeks after the accident my client would be able to lift 35 pounds?  For example, this bag"--Kent picks up a large toolbag from Loews--"weighs about 30 pounds."

"I didn't see Mr Burr 6 weeks after the accident, but based on the extent of his injuries, I would say that would be typical, yes."

"And you maintain that after 12 weeks, he would be able to lift 50 pounds?  For example, this bag..." he walks over to another Lowe's bag "...contains a window sample and weighs about 50 pounds."

"That's correct."

"No further questions."

Burr

Kent's spends some more time asking Burr about his quality of life, what it's like to be under the constant care of his wife.  She has to put on his socks on, prepare all his meals, help him with hygiene.  They recently drove to Ohio to visit his sister; he had to take constant breaks.

Burr explains that his neglecting to mention any pre-existing conditions on the depositions was "a mistake."

On cross examination, Biegler hammers Burr on the errors in the deposition; he's unrelenting.

"In the deposition we asked you, under penalty of perjury, if you had any back pain in the past five years, and who--if any--were the treating physicians.  How did you answer?"  The deposition is up on the projector, we can all see the answer is "No."

"You mean how would I answer now, or how did I answer then?"

"How did you answer then?"

"I said 'No.'"

There are four other questions on preexisting conditions; for each William reads out "No."  William's explanations are unsatisfying: he "forgot" about the visit to Bay Area Pain and Wellness Center, his answers were a "mistake."

Biegler puts the BAPWG report on the screen. "I'm reading here that you've had back pain since childhood--from 'falling off a pogo stick, falling out of a truck, sport injuries, the list goes on and on.'  You've had a long history of back pain, haven't you Mr Burr?"

"It depends on what you mean by 'back pain.'"

Harold Poe

Kent puts Poe back on the stand.

"Mr Poe, how much money were you making as a deputy District Attorney?"

Biegler is not happy. "Your honor, as we discussed over lunch, I object strenuously."

Kirwan:  "You object to the question?"

"I object to the question, and the entire line of questioning that's about to follow.  This is a standing objection."

"Right, I'm going to overrule; your objection is noted for the record."

We learn that Poe was pulling $180,000 a year as a deputy DA.  But he was fired and disbarred for 3 months after the felony conviction.

"And how much income have you had in the past year?"

"Well, I've been getting a break on the rent and some income where I live now, a Clean and Sober..."

Kent didn't want us to hear that, and cuts him off. "Your honor, the witness isn't answering the question."  This sends Biegler over the edge; his fist hits the table: "I object your honor. Mr Kent"--he gestures emphatically--"is the one opening the door.  Mr Kent is opening the door to the answer. The witness is answering precisely the question that has been put to him."

Judge Kirwan allows only the slightest hint of exasperation to enter his voice. "Mr Biegler, there's no need to point. Everyone has been very professional up to this point, and I expect it to stay that way."

"I apologize your honor.  I apologize."

If Kent was trying to shield us from some of the details of Poe's post-accident personal life, his effort seems to be in vain.  It all comes out in Biegler's cross examination anyway.

Poe is out of work now, but has been diligently sending out resumes. He has practically no savings left.  He tell us he has "three little girls to support", and often sends in more child support than he is legally required to.  The job market is tough, and a felony conviction doesn't help.

Kent makes a fuss about Poe omitting the felony conviction from his resume; Biegler counters that it's routine to look up convictions online.

And that's the last witness.  We've heard from William's friends, his wife, his doctors; we could each write his biography. We still know little about what kind of person Poe was before the accident--what kind of person could be so incredibly reckless.

We break for lunch.

CLOSING STATEMENTS

Kent has let the trial get away from him; he tries to get it back under control with the closing statement.

"This is what happens in personal injury lawsuits--defendants find sharp lawyers like Mr Biegler who try to make the trial about anything except the accident. You get attacked--the same way the victim of a rape gets attacked if they try to sue."

"What I find really disgusting, though, is the Dr Stearns of this world. Dr Stearns, who is hired by the defendant, claims that my client should be able to lift fifty pounds in twelve weeks.  Fifty pounds!  William Burr was still in a back brace at twelve weeks. There is no way he could lift fifty pounds then--or now."

"Mr Biegler would love to have you forget about what happened on June 6, 2008.  All he wants to talk about is March 3, 2007--that's his favorite date!  But don't you forget, this case is about drunk driving with a 0.27 BAC."

"This is a man who lied to the police the morning of the accident, telling them he only had a couple of beers.  We now know that he was drinking continuously on the way to and from San Francisco. Let me show you a timeline of what happened Sunday morning."

He shows a slide tracking the Burrs and Rob Poe hour by hour. For the Burrs, it's: wake up, go to work / church, get hit by a drunk driver, go to the hospital.  For Poe, it's wake up, have several drinks, drink and drive to San Francisco, turn around, stop at a liquor store, drink and drive some more, and then hit William Burr.  "This is what a drunk driver can do to you," Kent says, again showing the slides of Burr's injuries. "We need to let Mr Poe know that society will not tolerate this kind of reckless behavior."  Kent wants to build on the knee-jerk outrage that we feel when we hear "0.27 BAC".  But we've heard it so often, it has lost its impact.  We've become numb to it.  I suppose this is what happened when the Rodney King jurors watched the same tape over and over agin.

Kent's closing takes a full hour, but the rest of the argument doesn't vary much from what we've heard the previous three days. He finally gets to the damages, the "ask." For medical expenses to date, he wants the $50,000 that has already been paid.  For lost income, he's asking for about half a million dollars.  For pain and suffering, he wants about ten million dollars.  (Finally, we are talking about real money!  I admit I took a snooze when Carol Hyland itemized buying a $500 back brace every few years.)  Then he turns to the question of punitive damages.  Just as for pain and suffering, there is no legal guidance for punitive damages.  "You don't know what Mr Poe's criminal sentence is--that's not part of this case.  But you do know he's sitting here with us today.  And you know he was disbarred for three months.  Ladies and gentlemen of the jury, for punitive damages, we are asking for ten percent of Mr Poe's projected future earnings: $240,000."

After the break, Biegler has his turn. His performance is stunning.

He first asks us to think about the witnesses. "Ladies and gentlemen, don't you find it strange that every single one of Mr Burr's witnesses has been hired by Mr Kent? Doesn't it raise some questions why he hasn't called a single doctor who treats him on a regular basis? Someone who knows his medical history, someone with whom he's built a relationship?"  (Actually, Biegler hasn't called any of Burr's regular doctors either. We thought Burr's regular doctor, Dr Han, would be called to the stand, but she never was.)

"Instead, you have the rehabilitation doctor, and the optometrist, and the neurologist who are all seeing Mr Burr for the first time.  'Got any back problems, you got any pain? Golly gee, it must be due to your injury.' Then we pass the numbers onto the life care professional and the economist. All of them: Paid. Litigation. Consultants.  Together they have to..."--Biegler taps his feet rhythmically, searching for the right words--"work the case. It's part of the 'strategy'. Get the picture, ladies and gentlemen? They're all working together, they're all part of the 'team'. This is how personal injury works, they have to 'build up the claim'." Biegler is right in our faces, his voice is thick with scorn.

"Let's look at who actually treated Mr Burr, the people who actually tried to help him. The paramedic. The neurologist at Valley Medical. The specialists at Bay Area Pain and Wellness Group.  All of them were witnesses for the defense."

"William Burr was treated by Dr Torres. Dr Torres is a world renowned expert in neurosurgery, head of the trauma department at Valley Medical. There are many things wrong with our health care system, but Dr Torres is an example of one of the best things about it.  You heard him talk about the GCS score of 15. You heard Mr Kent ask him about cases where symptoms mysteriously appear months after the original injury.  It. doesn't. happen.  Dr Torres completely demolished William Burr's"--now Biegler's whole upper body is rocking back and forth as he searches for the word--"bogus claim of head injury."

"Here's what I don't get. Why bother? Why go to all this trouble? Why hire all the professional witnesses and parade them in front of you? This case didn't have to go to trial. Rob Poe is a man who threw himself at the mercy of the court"--Biegler holds up his arms, as if being led away in cuffs--"'I am responsible, it's all my fault.' From day one, Rob Poe has been willing to pay fair and reasonable compensation for the injuries he has caused."

"The law says the plaintiff is only responsible for any injuries caused by the injury. You get how this works, don't you?" Biegler looks straight at the juror to my right. "If on Tuesday, you had some pain, and it was a three, and on Wednesday you get in an accident and your pain goes up to a five, the plaintiff is only responsible for the difference. Makes sense, right?"

"Why not just be open about it? Why not just say, 'I got hit on my bike by a drunk driver, I got tossed up in the air and landed flat on my keister, but hey, I had some back problems before this too?' Just lay it all out. Do you think William Burr has been open and forthcoming about his prior problems?"

"Or do you think maybe, just maybe, the Burr's want more than what is fair and reasonable compensation? Do you think maybe, just maybe, the Burr's are over reaching?"

"On the first day of the trial, I compared this trial to the forced sale of real estate. Eminent domain. The transaction has to happen, the parties just can't agree on the price. It's as if we have run-down fixer-upper in a bad neighborhood that's worth maybe $200,000, tops. The Burrs want nine million dollars." I wince at the analogy; it's William Burr's body that is being compared to a crappy house.

"We asked William Burr about whether he had pre-existing back pain in the past five years, and to list the names of any medical providers. We asked him in depositions on January of last year, and we asked again in December, just last month. Both times he denied any problems."

"This is not something you just throw together. This is not something you do casually. The law says depositions are just as valid as courtroom testimony--they are taken under oath, under penalty of perjury. You have thirty five days to return the deposition. Thirty five days to review it with your lawyer." Biegler strolls over to Poe and slaps him on the shoulder. "You remember when we worked on our deposition, right buddy? I said, This is it, this is going before the California Superior Court. We have to make sure we get this right."

He walks back to the jury box. "Why does this matter? Who cares? Why is this so important?" Biegler is furious--he's more worked up about an incorrect deposition than Kent has ever been about the original DUI. "Because without accurate information on the deposition, I can't do my job." Biegler points back at Poe, his voice rising. "Because without an honest deposition, I can't defend that man."

"Mr Kent says he wasn't trying to hide anything; the March 7 visit is part of Dr Han's medical records. It all came out in the end. So what? What's the big deal? No harm, no foul, right?" Biegler's head is slightly cocked to one side, and for the first time I notice his right eye is bloodshot. He's so angry, he can barely get the words out. "What is this, poker?"

"I'm embarrassed to admit this. One of the reports indicates that Mr Burr had nine ER visits for back pain in 2007. I have no idea where those visits were. No idea."

"That's not the way the system works. That's not justice."  Biegler's fist lands softly in his palm.  "That's. not. right."

He turns to the issue of damages. For future medical expenses, he proposes $15,000. "That number might seem...." He walks to the witness box, then paces back.  "Let me try this again."  He puts up a slide. "The plaintiff has spent some fifty, sixty thousand dollars on retained litigation consultants for this case. If he had taken half that money, and spent it on actual medical care...." He looks at Burr. "Get healed up.  Get healed up, man."  He shakes his head, disgusted.

Biegler then gives us three reasons to award no punitive damages. First, Poe didn't act out of malice; he was simply a very, very sick man.  Second, he repeats the fact that Poe has already plead no contest, and sentenced in criminal court.  Finally, reminding us of the judge's instructions that we may not award damages "in excess of the defendant's ability to pay," he tells us that Poe is broke. He has no savings left.  None of these arguments sits well with me.

Here is the breakdown for what each side asks us to award:

	Plaintiff	Defense
Past lost earnings	$82,500	$19,422
Past medical bills	$45,360	$45,360
Lost future earnings	$482,384	$0
Future medical bills	$937,530	$15,000
Past pain and suffering	$500,000	$50,000
Future pain and suffering	$9,000,000	$50,000
Loss of consortium	$1,000,000	$17,900
Punitive damages	$240,000	$0

Blogging jury duty: Day 4

Carol Hyland

Judge Kirwan is happy about the weather this morning. "Well, it looks like we're going to get a little sunshine today."

The day starts with Carol Hyland, a "life care planner."

Throughout the trial I'm struck by the strange intimacy shared by Kent and Biegler--before presenting evidence, they'll lean across the aisle and whisper "I'm going to show them this, this, and this. You okay with that?" "No problem." They repeatedly mention to the judge some "gentleman's agreement" they're reached outside the courtroom for putting exhibits into evidence. At one point, one of Kent's witnesses is late, and Biegler cuts him a break by bringing in one of his witnesses early. Kent leans across the aisle to Biegler, "Really appreciate it" and Biegler touches Kent's shoulder and says quietly, "Not a problem, you guys are a pleasure to work with." Biegler is tall and lean, Kent is short and overweight; in another life they could have been Abbot and Costello.

And then I realize that most of the witnesses and Poe and the lawyers and judge of course are all professionals--they've done this countless times before. We in the jury--the scorekeepers, the so-called "ultimate fact-finders"--are the only amateurs in the courtroom.

Carol Hyland is such an authority in the life care planning field that she's been retained by Kent and Biegler on other cases. She goes through in excruciating detail the ongoing care Burr will need--from Visiting Nurses Association housecalls to assisted living, down to paying someone for help with laundry and gardening. Hydrotherapy--very effective in cases like this--runs a whopping $580 an hour. She goes through all the equipment he'll need, from wheelchairs to back braces.

Biegler starts by challenging the figures for cleaning expenses. "So you have cleaners coming one, maybe two hours a week?"

Hyland gives him a look of mock astonishment. "You know that's not how cleaning works." Laughter. Hyland and Biegler are on opposite sides now, but they obviously go back a long way.

Biegler grins. "You're talking to a man who still cleans his own toilets; I think I can get them clean in an hour."

And even the judge can't resist making a joke: "I'm not sure if I should strike that last comment from the record or not!"

It takes only a few minutes for Biegler's questioning to turn hostile.

"Ms Hyland, turning to page 3 of Dr Johnson's recommendation, can you explain to me how he arrives at a sum of over half a million dollars for assisted living, before medical expenses...."

"Mr Biegler, assisted living does not include medical expenses...."

"I understand that." The edge in Biegler's voice grows sharper. "What I am having trouble understanding, Ms Hyland, is how he could possibly get a total..." Kent leaps up, as if his chair is on fire.

The comraderie between the lawyers evaporates. "Your honor, Mr Biegler is a fine lawyer and a gentleman, but I have to object. This is argumentative."

The objection is sustained--Biegler tries a different tack.

"These services you have here: cleaning, cooking, caring for Mr Burr--Mrs Burr provides those services now. True statement?"

"Yes. These are services upon which Mr Burr has become dependent Mrs Burr."

"So these amounts are here in case--excuse me--in case Mrs Burr should die.  True statement?"

"In case Mrs Burr should prove unable or unwilling to provide those services."

"Which is a hypothetical, isn't it?"

Roland Torres, MD

The next witness is Dr Roland Torres for the defense, chief of neurosurgery and director of neurotrauma at Santa Clara Valley Medical Center, associate professor of neurosurgery at Stanford, and the on-call neurosurgeon when Burr was admitted. All the expert witnesses have impressive credentials, but Torres's are especially imposing. Torres has a bit of gel in his hair; he looks like a rock star.

Again, we hear: no evidence of head injury. No evidence of abnormal brain function, either on the date of the accident, or on any of the subsequent visits. GCS score of 15 on each of three visits--completely normal.

Torres goes even further than that. Even though there is variation among patients, "most patients" should be able to reach a full recovery from trauma of this sort within 12 months.

Kent tries to make a dent in his testimony.

"Isn't it possible for symptoms of a brain injury to manifest themselves months after the accident?"

"No. If there was trauma to the brain, the patient would be symptomatic immediately after the accident."

Kent digs through his papers. I sense he is stalling for time. "Why do you suppose some people report cognitive problems only weeks or months after the original injury?"

Torres is unequivocal: that just doesn't happen.

Kent shows Torres the photo of the car with tailpipe pushed into the fender.

"Dr Torres, I don't expect you to be an expert on this, but wouldn't you consider this to be a pretty serious accident?"

"Actually, I'm also a motorcycle rider, and I take a special interest in the subject of motorcycle injuries and equipment."

Oh. Even so, Torres refuses to concede there is a possibility that Burr is suffering from a brain injury.

Rosemary Burr

Finally, we hear from Mrs Burr. We see their wedding pictures, vacation pictures, and hear how they moved here from New Jersey. She's the main breadwinner in the house--she's an office manager, bookkeeper, and client security manager. She talks about how they were separated (not divorced, as the defense asserts) for 3 years (not 7, as the defense asserts), and then reconciled a year before the accident.

And, as you might guess, we hear the story of how their lives have been transformed by the accident--how she has to dress and feed him, how she now has to do all the chores, how they no longer enjoy hiking or bird watching or even shopping together.

"You were separated for a period of time, weren't you Mrs Burr?"

"Yes, for two years."

"But you're back together now?"

"Yes, we worked out our differences and we're very happy together. William--I don't know how I could live without him.... On the day of the accident, William told me he was just looking at the sky, thinking about how wonderful life is. And all this...got taken away from us. We didn't ask for this. We didn't ask to have this happen to us."

On cross examination, Biegler drills in on Burr's employment history.

"Why did your husband leave Atlas Capital Management company after only 9 months?"

She seems unable to edit out the first thought that comes into her head. "It's not--it's not that he didn't get along with the other people there." Pause. "He didn't agree with their principles."

"And other than his work there and as a tax preparer for H&R Block, what else did your husband do for work, in the five year period before the accident?"

There is a long silence. "I--I don't remember. I'm sorry, I'm really nervous."

"That's all right. Take your time." Biegler is on a roll; he starts rocking his foot as searches for exactly the right phrasing. "Let's open it up to, say, ten years. It is customary when you introduce your spouse at a party, to mention what he does for a living. How did you introduce William?"

Another long pause. She looks up at the ceiling; she's lost. Finally: "Sales."

"Sales? What did he sell?"

"Real estate." She thinks a bit more. The courtroom is silent. "And he sold electronic parts, for a while."

"No further questions."

Smiling broadly, Kent resumes questioning and throws her a lifeline.

"Mrs Burr, your husband taught at Foothill College, didn't he?"

"Yes, yes, of course he did. He loved to teach."

"And he also loved volunteering at Villa Mahora, didn't he?"

Without moving from his chair, Biegler cuts in sternly with a one word warning: "Leading".

"I'll rephrase. Didn't your husband also volunteer at Villa Mahora?"

"Yes, he did."

She leaves the stand, visibly relieved. But the damage has been done.

Bay Area Pain And Wellness Group

Next we hear from three witnesses for the defense: a parade of three medical professionals from the Bay Area Pain and Wellness Group. This is going to be the linchpin of the defense: that William Burr checked himself into BAPWG one year before the accident, complaining about exactly the same symptoms that he today blames on the accident.

The witnesses are in an awkward spot; they have have nothing against Burr, but they understand their testimony could potentially deny him a settlement in a DUI lawsuit.

Burr went in for a single visit to BAPWG, over three years ago. None of them remember him, so their testimony can only consist of reading aloud the reports they wrote at the time, and speculation about what they might have done.

The written reports document that Burr has complaints of back pain dating back to when he was a teenager, due to "falling off of a truck," sporting accidents, "the list goes on and on." He reports problems sleeping, depression, etc. He reports that he works from home, he "rarely leaves his cave." They report that he's divorced from his wife--apparently that's what he told them..

When asked why he didn't accept treatment there, the doctors try to soft pedal it. "Our program isn't right for everyone." "Maybe he wasn't ready."

But the written reports tell different story: that he's argumentative, not open to treatment, stubborn, hostile.

The last witness from BAPWG is Kim Minh, a physical therapist. In spite of the fact that she is young and doesn't have the long CV of the other expert witnesses, she is by far one of the most credible witnesses: she has no reason to be biased one way or another, she's utterly forthright and candid, and she's in complete command of her material.

Like the other witnesses at BAPWG, she has no independent recall of Burr. But her notes are meticulous. She reports that Burr's "focussed gait" is lopsided, but his "unfocussed gait" is normal.

Biegler: "Can you help us understand you what you mean by 'focussed' vs 'unfocussed'?"

"Well, by unfocussed gait, I mean your walk when you are not paying attention to it. For example, if I were to point out that most of the members of the jury have poor posture"--she throws a glance in our direction, and we react as if marionettes pulled on a string--"you'd immediately sit up straight." We laugh, but we're now also hanging on every word she says. "Likewise, your 'unfocussed gait' is more likely to be your 'normal' walk."

"And you indicate here that Mr Burr's flexion is limited front to back and side to side by 50 percent and 25 percent. Is there any way you could help make that more clear for us?"

"Do you want me to stand up and demonstrate?"

"If you would."

I wonder if Kent and Burr have any idea what is happening to their case.

"Your honor, we would now like to play for the witness the video of the exam from Dr Kiernan's office.  Ms Minh, if you see were to see this patient..."

"I'm sorry, I can't...."

Judge Kirwan: "I'm going to have ask you to speak one at a time. The court reporter can't keep up if you overlap."

"I'm sorry. I'm sorry. Your honor, can I get a little closer to the screen? I left my glasses at home this morning."

Biegler looks at Kirwan, who gives permission.  This time when we see the video, I hold my notebook up in the air and try to sketch the exact angle that Burr is making as he tries to bend his waist.

"Ms Minh, if you were to see this patient today, what would be your observation?"

"That he has limited front-to-back and side-to-side flexion."

"Can you be more precise?"

"I would say he is limited to 50% flexion front to back, and 25% side to side."

"Exactly the same observation you made three years ago, in March 2007."

"Yes."

"No further questions."  He may as well have said "Q. E. D." Kent can't do much to negate this testimony. He does try to make Minh sympathetic to his client.

"You only found out a few hours ago that you were being called to testify for litigation in regards to damages for a DUI, is that correct?"

"That's correct."

"My client was in good enough physical shape shortly before the accident to complete a 4000 mile motorcycle ride. Now I don't expect you to know anything about what it takes to undergo a ride like that...."

Ms Minh corrects him. "Actually I have and ride a motorcycle." Huh, am I the only person in the courtroom who doesn't ride a Harley?

Burr is at least able to get Ms Minh to admit that when she saw Burr, she did not observe that his back was highly sensitive to palpation.

William Burr

We finish with Kent's direct examination of Burr himself. Burr says he's tired and in pain, and he looks it. But he's much more coherent and articulate than I had expected from the defense neuropsychologist's report. There is only time for 15 minutes of testimony, and we're done for the day.

It's now 4:30 on Thursday. We've heard all the witnesses, and my notebook is almost full. I have no idea how we're going to reach a verdict tomorrow.

Blogging jury duty: Day 3

Anne L, Artist, Jonathan R, Publisher

The first witness is Anne L, a personal friend of the Burrs who knows them from their volunteering work. She has known them for 25 years. You can tell this is her first time on the witness stand; she sits forward in her seat and talks right to the lawyers, rarely looking at the jury. She sees the Burrs at church, at the museum, she and Mrs Burr spend lots of "girl time" together, shopping, hanging out, talking on the phone. All that has changed now since the accident; all of Mrs Burr's spare time seems to be consumed caring for Mr Burr. She's afraid to hug or touch William after the accident; she can tell it would hurt him.

At one point, Kent raises his hand to stop her in mid-sentence. It turns out the court reporter is having a little trouble with her sinuses. Kent explains, "If she's not working, we don't exist." The reporter swallows a pill and some water, and we keep going.

In a similar vein, we hear from a small book publisher in Los Gatos. He first ran into Mr Burr many years ago, when he used Burr's printing company. Burr, it seems, knew so much more about printing than he did, that he decided he needed to hire Burr. He talks about how Burr routinely had to lift pallets with huge boxes of papers. And, as a former motorcyclist, he knew firsthand that a 4000 bike trip to South Dakota isn't something you do unless you're in good shape. We hear that Burr is not the same after the accident; the changes are "scary." He's now a "stiff, crippled individual."

Burr would do things like go to the drug store and put together little care packets filled with toiletries and hand them out to the homeless near Los Gatos Creek. This was just "William being William."

Both these witnesses seem completely credible to me. Biegler doesn't cross examine either one of them.

Rebecca M, Paramedic

Due to some mixup, we're now going to hear a defense witness, out of order--it's the paramedic who first treated Burr at the scene of the accident. By the time she got there, Burr had already been immobilized on the stretcher, and his helmet removed. She reports that he was "alert and oriented" the time of the accident, and that there was no sign of trauma on the head or the face.

"Did Mr Burr lose consciousness as a result of the accident?"

She says he did not.

"How do you ascertain that--do you simply ask the patient if he has passed out?"

"We do that, but we also walk him through his recall of events to the present time. He had no difficulties."

She introduces us to the GCS (Glasgow Coma Scale), which ranks head injury on a scale of 3 to 15--they ask what year it is, who is the president, etc--where 15 is the best possible score.

Biegler asks, "Assuming I got a good night's sleep and am coherent in talking to you right now, what kind of score would I get on the GCS scale?"

"Fifteen."

"For the sake of my client, I should hope so. And Mr Burr, what was his GCS score when you examined him?"

"Fifteen."

Robert Johnson, PhD, Forensic Economist

After that we get to our first professional witness. (Or, as Biegler will say scornfully throughout the trial, a "paid litigation consultant".) Dr Robert Johnson is a "forensic economist," a Stanford PhD with an air of authority; he looks a bit like Dennis Haysbert. He's been quoted in the New York Times and the San Francisco Chronicle. He walks us clearly through charts showing inflation, medical inflation, interest rates, decline in purchasing power of the dollar, and on and on. He gives as good an explanation of Net Present Value as I've ever heard. He walks us through calculations for lost wages.

How much should Burr be compensated? The numbers have an authoritative sound, calculated down to the dollar, but to me they feel like one guess multiplied by another.

Burr's past income is wildly variable: Burr has one year of about $50,000 income, mixed with several years of $2,000 and $3000 income. To come up with a range, Johnson starts with a baseline of minimum wage, and a maximum of $50,000.

He had just recently undergone training at Loews and was about to become a window salesman/consultant, paid on commission. It's anybody's guess how much might that have paid.

And what employment would he--could he--get now after the injury? (The defendant is only obliged to make up the difference.)

It occurs to me that the bigger, sadder question is the whole idea of basing damages on lost wages--the idea that the injured party should get less in damages because they decided, say, to go on a cruise for a few years, or live in a monastery, or spend more time with their kids.

Then he goes through numbers of "life care": scenarios where he has a nurse come in for four hours a day, or if he goes into assisted living, or if he stays in his house and an attendant lives with him. The present value numbers run into 1.3, 1.5 million dollars. He covers "chore services" (i.e. housework), at $8750 per year, with a PV of $160,000. Finally, there are future medical expenses, which run to $223,000.

Biegler cross examines Johnson. As is usual when he does the cross, there is an edge to his voice. He takes us through a detailed tour of the W2s and Schedule C from Burr's tax return, to arrive a single gotcha: $40,000 in income that is unexplained.

"Did you consider this $40,000 when you calculated Burr's earnings for that year?"

"No sir."

"Isn't it possible that this is $40,000 in addition to the $50,000 you used in your calculations?"

"I can't account for the $40,000, so I based my figures on the income submitted to the IRS. That's the most conservative calculation. Anything else would be speculation."

"So it's possible then, that you've short-changed your client, that all your numbers are much too low."

"Yes, sir." Johnson chuckles at the fact that opposing counsel is helping the plaintiff. "The number would go up, sir, not down." What's the point of this questioning? It's a mystery to me.

Biegler moves on to attacking Johnson's credibility by claiming that he just makes money from lawsuits.

"Isn't it true sir, that most of your income is litigation-related?"

"No, sir. All of my income--100 percent--is related to litigation."

"And how much do you bill?"

"I bill at $550 per hour."

"And how many hours will you have put into this case?"

"About six hours."

"Does that include your court time?"

"No sir."

"And how much would that be?"

Johnson answers wryly. "Well, sir, it depends on how long you're going to keep asking me these questions." The woman to my right lets out a giggle.

Biegler looks down at his papers and frames his next statement carefully and slowly, his voice hardening. "I'm going to keep you as long as I need to discharge my responsibility to my client--and not one second longer." Biegler looks up and makes eye contact with Johnson. "Assuming we are done by lunch--and we will be--how many hours in court will you have spent?"

"If we are out of here by lunch, that would be about another 6 hours, including travel time."

"Thank you. No further questions."

Dr Kiernan and Dr Barchuk

In the afternoon we hear from a clinical neuropsychologist and a rehab doctor, both with very impressive credentials.

I know we're not supposed to react--we're not supposed to influence the other jurors in any way during the trial.  But it's hard for me to not wince when I see the photos of Burr shortly after the accident.  His back, shoulder, and hip are covered with large, angry bruises.  Kent plays for us a video taken just two months ago at Dr Kiernan's office: they show that even now Burr has trouble moving his back--he can barely move it from side to side, or even front to back.

The doctors go into great detail the care Burr will need from now on.  He's going to need physical therapy, equipment, help with chores, etc. 

We hear about myofascial muscle pain--how the soft tissues of the muscle have torn from the accident, and healed incorrectly "in spasm." It will take years of physical therapy to reduce the pain, and the best they will ever do is to make the problem go from "active" to "latent." (Turns out Nietzche was wrong--whatever doesn't kill you doesn't always make you stronger.)

Biegler's tactic is simple. He shows them the March 2007 paperwork for Bay Area Pain and Wellness Management group.

"You claim that as a result of the accident, Mr Burr is suffering from an inability to concentrate, fatigue, back and neck pain, and sleeplessness. But before the accident, we have here a report that Mr Burr suffered from an inability to concentrate, fatigue, back and neck pain, and sleeplessness." To drive the point home, he ticks off the list in a singsong, saying it exactly the same way each time. "What makes you think the accident was the cause of his problems?"

And for both of these witnesses Biegler again stresses that they are "retained litigation consultants," and reviews their rates of pay (it turns out everybody connected with lawsuits charges about $500 an hour). Biegler will make the point again and again that the only experts who blame the accident for Burr's symptoms are retained litigation consultants; none of the medical professionals who actually treated him post-accident noticed any symptoms or physical signs of head injury.

Back pain, neck pain, inability to focus, fatigue, loss of concentration...through the past three days we hear these words over and over and over again. I learn later that the other jurors are thinking exactly the same thing as me: I'm suffering from those problems right now.

Blogging jury duty: Day 2

Judge Kirwan starts off by apologizing about the parking situation. Apparently there is a grand jury being impanelled today.

Mr G and one other prospective juror who was disturbed about the BAC are sent home right away, "for cause." The woman whose daughter is a deputy DA is sent home. Both lawyers and the judge stress how important it is for us to be completely candid, to look "deep in our hearts" for any reason we might be biased. "That's the only way the system can work." Both lawyers tell us they want a fair trial, for their client and for their opponent's client.

Alternate jurors are brought up from the galley and, after some long and tedious questioning, two more are knocked out: an old lady who answers every question with "I believe in law enforcement. My son was a police officer for 25 years" and a man with a thick Vietnamese accent who keeps talking about how he himself never drinks too much at parties and how he has never gotten into any trouble.

Finally, the jury and two alternates are impanelled. We're sworn in, and given little blue badges. Judge Kirwan gives us some preliminary instructions.

Judge Kirwan looks a little like Christopher Reeve, but blond. (Some of the other jurors suspect he's wearing a Superman costume under his robes). He's younger than I thought a judge would be, but composed, professional, and really really nice. He spends a lot of time thanking us for serving as jurors, explains the mechanics of getting reimbursed for parking. He explains that periodically he and the lawyers will need to confer out of earshot, and those would be a good opportunities for us to get up and take a stretch break.

He tells us the two lawyers are experienced professionals--they won't waste our time. We're fortunate that this will be a short trial--"only" five days. We should feel free to take notes, but we have to leave the notebook in the courtroom. We must stay away from the scene of the accident, we must not do any research into the case, we can't do any experiments, we must not consult any materials--not even a dictionary. We all have to see and hear the same thing. And we can't discuss the case with anyone--not family, not even with our priests or with our shrinks.

Opening statements

Kent's opening statements give us Mr Burr's life story in excruciating detail--where he was born (he's about 60 now), where he went to high school, when he was married (the Burrs have been together some forty years now). They show his education (community college, MBA from an online school) and employment history (lots of random things--started a printing company, sold real estate, most recent job was training to be a window sales consultant at Loews).

Burr and wife seem to be thriving in the (upscale) neighborhood they have settled in--giving walking tours of Los Gatos, frequently volunteering time at the Villa Mahora (the local museum), taking long hikes, going bird watching. He went on a 4000 mile motorcycle ride looping through Sturgis, South Dakota.

All until the day he was hit from behind and thrown into the air by Mr Poe's van at a stop light on a warm Sunday afternoon at 1pm, June 6, 2008.

Burr fractured 4 vertebra and 3 bones in his rib cage. We're shown a photo of the van--most of the left front corner of the body is sheared off. In a close-up shot, we can see that half of the motorcycle's tailpipe has been is buried inside the van's metal bumper, like a toothpick going into a marshmallow. And we see a shot of the inside of the car--strewn with empty beer bottles, mini-vodka bottles, and 3/4 full bottle of gin. It's unbelievable.

The plaintiff wants recovery of future earnings, and his wife is asking for compensation for "lack of consortium". They want damages for pain and suffering--they can no longer hike or do many of their other favorite activities. They also want punitive damages.

Biegler, in its opening statement, doesn't deny any of this. Poe had a problem, he was drunk, it was all his fault. He should pay. But how much? Biegler shows us a letter where Burr sought treatment at the Bay Area Pain and Wellness Center--a full year before the accident. Instead of a vigorous member of the community, Biegler shows us letters from doctors which show the pre-accident Burr suffering from chronic back pain, depressed, and isolated. He shows a report from the center which quotes Burr as saying he is lonely and "rarely leaves his cave." Instead of being happily married, the report says that Burr and his wife have been divorced for 7 years.

Why should the plaintiff pay for problems Burr already had?

What's more, Burr lied--under oath--about his medical problems, claiming that he had no medical problems at all before he was hit.

Instead of Poe's reprehensible behavior, the defense is trying to make the trial about Burr's health and credibility.

"As for the matter of punitive damages, let me just say this: Mr Poe has already plead 'no contest' to two felony counts of DUI and injuring someone while DUI in criminal court."

Doctor K

The first witness is Dr K, who is an optometrist who specializes in vision problems which have a neurological cause. He's part of NORA: the Neuro-Optometric Rehabilitation Association. He sees a lot of autistic children, brain injury victims, etc. Most of us haven't heard of this speciality, so Dr K has brought in a slender book which apparently is a standard reference in the field.

He goes through a catalog of the various vision related problems that Burr is now suffering as a result of the brain injury: his midline has shifted several degrees, causing him to misjudge doors and run into walls, his vision seems to come and go randomly, objects shift before him, sometimes he can and can't focus on things. Kent asks the question we're all thinking: Couldn't he be faking? No, many of these results are involuntary, such as the focus of the retina changing. These types of problems can only be attributed to post-traumatic brain injury.

Biegler doesn't bother to contest any of these findings. Instead, he goes straight for Dr K's credibility--actually he attacks the credibility of the entire profession. First, a tactical move--he approaches Dr. K and removes all his notes and his book, which seems to disorient him.

Is there any certification to becoming a NORA specialist? (There is not).

Are there are any other books besides this one you've brought in on the subject? (There are, but Dr K can't think of them right now).

How about peer reviewed journals and articles? (Dr K says, sure, check the website).

And then Biegler's final question, meant to imply that Dr K is little more than a snake oil salesman: How exactly does one become a NORA specialist? Dr K pauses to think about the question, but doesn't lose his temper. It's not clear to me whether Dr K is incredibly disciplined, or just oblivious to the implied insult. He answers the question plainly and thoroughly: you become a specialist by getting more and more referrals until all you do is work in that specialty.

Harold Poe

In the afternoon, Kent calls Poe to the stand. Poe could be William H Macy's younger brother--40ish, thin, pale, with a shock of reddish blond hair.

First Kent covers the obvious.

"You know sir, from your work in the DA's office, about the dangers of DUI?"

"Yes."

"And you knew the kind of danger that you were putting yourself and others in by getting into a vehicle with a .27 BAC--more than three times the legal limit in the state of California?"

"Well, yes, I know now." Poe is neither contrite nor defensive. He seems to show no emotion at all. "I know now that it was a terrible decision. And I must have known then. Honestly, I don't know what my state of mind was then. I--I must have lost all sense of judgement at that time. It was insane."

Poe was a model deputy DA until he started drinking, specializing in "custody counseling" for minors, and then moved to prosecuting financial fraud. He started drinking shortly after his wife and kids left him. He was drunk pretty much every night and every weekend.

"How many drinks did you have in order to get to a .27 BAC?"

"Well, my understanding is that each drink is about .02, and you burn off .02 per hour, so I'm guessing it must have been 13, maybe 15 drinks."

"You're not sure."

"I'm not sure, because I didn't drink a 'drink'. I was just pouring alcohol into my system. I would drink 6, 8 ounces at time."

"How? How would you do that?"

"I would just pour it into a glass or drink it straight out of the bottle."

"Didn't that irritate your liver?"

"Well...yes. I was sick, all the time. But no, I didn't--it didn't bother me enough to stop me from drinking."

"To get to a 0.27--isn't it true that a lot of that alcohol must have been from the night before?"

"Yes, I think so, I think I was still drunk from the previous night."

"Do you remember hitting my client in your vehicle?"

"No. I don't remember seeing Mr Burr at all. All I can remember is a scream--maybe I was screaming or maybe it was someone else."

"Do you remember seeing my client fly into the air?"

"No, no, I don't remember that."

"You had a chance to review your deposition recently--is there anything in it that is inaccurate?"

"No, I don't think so."

Kent then plays a video of the deposition of Poe.

"In this video, you claim that you were on your way to San Francisco--to visit your girlfriend--and you had gone about a mile and a half when you hit Mr Burr."

"That's correct."

"When in fact, you had just returned from seeing your girlfriend, isn't that correct?"

"Um, yes, that's right. I drove up to South San Francisco to see her, but she wasn't home. I was there for maybe ten minutes, and then turned around and went home."

"Why did you lie during your deposition?"

Biegler speaks up, "Objection--argumentative." The objection is sustained.

"I'll rephrase. How do you explain what you said during the deposition?"

"I--I don't know. I did say that I was coming from San Jose, but I can't explain it. I don't understand. I don't know why I said that."

"So you woke up, drunk, had some more drinks, drove up fifty miles to South San Francisco to see your girlfriend, parked your car--presumably you locked it--walked up to her door, rang the doorbell, waited, and then drove back fifty miles to San Jose, and you were drunk the entire time."

"That's correct."

After Poe was arrested, the police took all the bottles and cans of alcohol found in the front seat of Poe's car, and set them up on a table. I've never seen these drinks before--for example there are a lot of cans of a beer called "Steel Reserve." Now that I'm free to use wikipedia, I can tell you that "Its primary claim to fame is its unusually high alcohol content (8.1% ABV) and low price."

"These empty bottles of beer--you must have been drinking them in the car that morning."

"Yes, probably. That was something that I did."

"Did you stop at a liquor store between San Francisco and San Jose?"

"Maybe. I don't remember."

"You notice the police report says one of the cans of Steel Reserve was cold. This was on a hot summer afternoon. How do you explain that?"

"I guess I must have bought it on the way back. I don't know how else it would have gotten in there."

"And, when you drank them in the car, did you try to keep the can hidden under the dash while you were drinking?" Kent mimes holding the steering wheel with his left hand and taking a drink with his right.

"I don't know if I did that. Maybe--maybe I wanted to get caught, maybe I didn't care. I don't remember."

Throughout Poe's testimony, he's calm and analytical. He has no reaction. It's as if he's talking about someone else. I have to admit I don't know who Poe is either. The person described in the testimony is a monster. But I don't see a monster when I look at Poe in the courtroom. I see nothing.

Blogging jury duty: Day 1

I started this journal because I had never served on a jury before and I thought it was interesting.  The case itself seemed pretty straightforward--something about a van, a motorcycle, and a 0.27 blood alcohol level.  It didn't take long before I realized that things are not always how they seem--and that I would need some way to explain what happened in that courtroom to my family, and to my friends.

Is it okay to blog about jury duty at all? This article seems to suggest it's fine as long as it's done after the fact.  If you're really into this sort of thing, there's some interesting reading here on jury misconduct.  Other jurors who have read through this blog (after the trial concluded, of course) have said that it is a fairly faithful account. I've changed just a few of the names and places, and combined some of the participants.

Questioning the jury

To speed up jury selection, they give us questionnaires. Name, occupation, years of education. The rest of the questions give us a hint about what's to come. "Do you think there are too many lawsuits?" (Haven't thought about it--No.) "Do you think jury awards are too high?" (No idea--No.) "Have you ever been injured?" (This is a silly question--Yes.) "Do you have any strong feelings about motorcycle riders?" (No.) "Do you have any strong feelings towards someone who has been convicted of DUI with a 0.27 BAC?" (Another silly question--Yes.) "Do you think someone who has admitted to a 0.27 BAC can get a fair trial?" (A fair trial about what? I check Yes.) When we're done with the questionnaires, Judge Kirwan gives us an outline of the case.

The parties involved are: the plaintiff Charles Burr, represented by Mr Kent, and the defendant Harold Poe, represented by Mr Biegler.

The defendant hit and injured the plaintiff while drunk. The defendant had a blood alcohol level of 0.27, and he has admitted that he is completely at fault--this is a civil case simply to determine the amount of damages. We're told that whether or not either side has insurance must not be a factor in our decision. The plaintiff struck a motorcycle stopped at a stop light at Los Gatos Boulevard and Garden Lane in Los Gatos. Los Gatos is the next town over from where I live (in fact I frequently bicycle past that intersection). I have to think hard to make sure I don't know any of the people in the trial: the defendant, plaintiffs, any of the witnesses.

I feel bad for the defense attorney, Biegler. How do you defend a guy like Poe? Biegler has a perpetual five-o-clock shadow and looks a little scruffy. I figure he must be a personal friend of Poe.

By the luck of the draw, I get moved from the spectator seating to the jury "hot box" right away, and the lawyers start to grill us.

It turns out many of the people in the jury pool thought that someone with a 0.27 BAC couldn't get a fair trial. Biegler compares the trial to a forced sale of real estate, like eminent domain: the parties agree the transaction must happen, they just disagree on the price. With that explanation, many people reverse their position. Some still have issues though.

Biegler: "Mr G, you answered that you'd have problems giving the defendant, my client, a fair trial."

"I just have very strong feelings about drinking and driving."

"I want you to understand: nobody here condones drinking and driving. The defendant has already plead 'no contest' to felony DUI in criminal court, and has already admitted complete responsibility for this accident. The only thing that is being disputed is that amount of damages. With that in mind, do you think you can give my client--and just as importantly, the defendant--a fair trial?"

"I will try my best sir, but that thought will always be in the back of my mind."

"The thought of the 0.27 BAC?"

"Yes."

Biegler questions a woman in the row behind me.

"Mrs M, you indicated on the questionnaire that your daughter is a deputy District Attorney?"

"Yes."

"My client, the defendant, is also a deputy District Attorney. It is very important that you are fair to both the plaintiff and the defendant. Do you think the fact that your daughter is a deputy District Attorney might bias you one way or another in this case?"

"Yes, I do."

"Which way?"

"I think I would tend to favor the District Attorney's side."

Another woman is friends with Dr Han, one of the witnesses. I find out later that she lives in the same town as me; her two daughters are sophomores in my son's high school.

Eventually they reach me, juror eleven. Mr Kent, the attorney for the plaintiff, asks "Mr Ng, you indicated on your questionnaire that you knew a coworker who was hurt in a motorcycle accident?"

"No, they were in a car."

He frowns. "Your coworker was in a car, and was somehow injured by a motorcycle? That's very unusual." (I guess my handwriting was really hard to read.)

"No, no, my coworker was in a car, and struck and injured a motorcyclist."

"I see. But you understand that was a different case, under different circumstances. Do you think you can give my client and the defendant a fair trial?"

"Yes."

Juror number 12 to my left is a muscular man with a shaved head and goatee; by the time they get to him, he is ready.

"I live my life every day by a code of honor, loyalty, and discipline--I was a Marine for 6 years--and I have very strong feelings about someone who would drive around drunk like that."

"My client has already admitted that what he did was wrong, and that the defendant deserves compensation for the injuries--the serious injuries--that were caused by the accident. My client and the plaintiff disagree on the amount that should be awarded. Do you think you can set your feelings aside, and follow the judge's instructions as to how much money the plaintiff deserves under the law?"

"Yes sir. I know how to follow instructions. I can follow instructions and do something that I find unpleasant. I've done that before."