The Prairie Barrister – My First Civil Jury Trial

By Ross Pesek

 

What does it mean to try a case to a jury? I’ve been thinking a lot about it since participating in jury trial this last June, in Douglas County District Court. I’ve been involved in trials before, but this case was different and I could feel it. This case was my first civil jury trial.

In both the material and spiritual sense, I’ve been through trials. In the material, literal sense, I have handled jury and bench trials on a variety of matters in state courts, federal courts and administrative immigration courts. But never a civil jury trial for an injured person.

In terms of spiritual trials, I have repeatedly defended immigrants taken from their family homes at daybreak. ICE agents breaking doors, six-at-a-time to arrest a worker, carrying a lunch pail, wearing steel toe boots and ready for the day’s work. They often leave the wife and mother behind with the children and claim to be compassionate for not arresting the mother and leaving orphans. These spiritual trials are amplified by the lack of access to a jury trial. Immigrants are denied the right to be heard by their neighbors on deportation matters no matter how long they live next to them. Without the power to appeal to the common sense of justice that lies deep in every human heart, injustice reigns.

Where and how can we access the power of a jury to give justice to our community? How can I develop skills that allow me to communicate powerfully what justice demands? To my mind, answering these questions is the work of a trial lawyer. I consider being a trial lawyer to a lifelong experiment full of opportunities to refine my answers and methods.

For example, my first civil jury trial.

In this trial, I was fully aligned with the truth. Based on my prior trials, I knew being aligned with the truth is fundamentally powerful – especially in front of a jury. Jurors are different than insurance adjusters, corporate lawyers and judges. There is an ability to speak plainly, in plain terms. A juror’s mind is not clouded by convoluted intellectual justifications created to avoid the inescapable conclusion they have become an instrument of injustice. With a juror you can speak the simple truth and receive justice.

At least, that is what I was hoping.

During the trial, I started to feel it was working. I spoke plainly and truthfully. Actually, I felt embarrassed to say what I had to say – it felt mean. It is against my nature to be harsh. But sometimes the truth hurts. For example, it did not feel nice to tell the jury the corporation negligently injured a pregnant woman, made her life hell, offered no help, invaded her privacy by obtaining 10 years of medical records, attacked her while deposing her and, by having a trial, was continually salting the wound of their initial negligence by denigrating her good name in court.

But since it was true, when I said it, the jury heard it. Unlike adjusters, lawyers and judges they could sense that no one goes through a trial for fun or even for a “jackpot.” They go through a trial to receive justice.

That’s what I kept telling myself.

And then it came, my cubic centimeter of chance – that opportunity that comes and goes so fast you must be waiting for it to seize it. There it was, my opponent displayed his lack of fidelity to the truth flagrantly before the jury (a mistake I learned to recognize through personal reflection). With calm, we rose, pointed out the medical findings that had been so clearly misrepresented and, in closing, gored opposing counsel’s credibility to the point of no return.

At least, that is what I think happened, with hindsight.

With my opponent’s credibility gored and limping behind me, I had only my final words left to determine victory or defeat. But what of victory and defeat? I say nothing of them. I thought only of justice for my injured client. I prayed the night before closing argument by imagining the truth to be a compass pointing due North to justice.

So what did I tell the jury? I told them I had never asked a jury for money before – it was my first time. I told them I called a mentor with decades of experience for help the night before and he told me not to “blow it.” I looked at each of my most sympathetic jurors directly in the eye and gave them every powerfully true statement I could think of, one at a time, said for understanding not for flair. Although, that doesn’t mean there was no flair. The truth has its own flair and I stayed true.

The case was submitted to the jury at 11:00 am on a Friday. Six hours later the judge called and let us know a deal had been made after six-hours of deliberations allowing a 10-2, non-unanimous verdict. We arrived at the courthouse and the forewoman (it’s a modern world!)delivered the verdict: $60,000 for the Plaintiff as justice for 8 months of temporary hell, while pregnant, caused by corporate negligence.

Do you want to hear the shameless courthouse gossip about what happened in the jury room?

Of course you do – be honest.

A few days later the jury forewoman called to tell me what happened. She was concerned I would get the wrong idea about the hung verdict. The judge’s bailiff commented to her presuming the holdouts were for the Defense. As an aside, the same bailiff previously expressed skepticism to me about beating the offer to confess judgement made by the defense and the possibility I could be taxed with court costs – her cynic nature barely veiled.

No, said the forewoman. She had become forewoman specifically to bring justice to my injured client. She knew the anguish caused by a threatened miscarriage to a planned pregnancy. In fact, during voir dire she described how she had never conceived children with her spouse despite years of trying (and was not struck!). She argued for six hours for one million dollars and she was sorry to have “blown it.” She had two allies but lost her last one at 4:30 on Friday afternoon – allowing the 10-2 compromise verdict. She made them wait another 40 minutes after the defection, the full six hours, rather than agree to $60,000 and leave early. I made sure she knew she was my personal hero and thanked her profusely.

There you have it, my first civil jury trial – an experiment with the power of the truth.