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.