The Daily Record has posted a few stories on the recent carbon monoxide trial featuring lawyers from the legendary Murphy Firm. A Baltimore City jury compensated 20 restaurant employee plaintiffs in that case with $34.3 million dollars. Plaintiffs argued that a hotel hot water heater leaked dangerous carbon monoxide into the Ruth’s Chris restaurant.

Carbon monoxide is a colorless, odorless and tasteless gas that can cause a range of physical complications, including headaches, nausea, vomiting, weakness, disorientation and death.  Over the long-term, it can harm memory and brain function. The amount of leaked carbon monoxide was over seven times the amount that requires evacuation of a building.

Post-trial motions for the defense were unavailing — they filed a motion for judgment notwithstanding the verdict on two parts of the claim, a motion for new trial, and a motion to reduce the verdict per the statutory cap ($695,000 per plaintiff for non-economic damages). The reports indicate that the judge denied all of these motions — the most interesting here is the judge’s refusal to apply to cap, likely because the plaintiffs argued, and the jury found, intentional conduct. The cap doesn’t apply to intentional torts because it was designed to reduce the cost of liability insurance, which does not typically provide coverage for intentional torts. Plaintiffs argued that the defendants purposely removed a safety device that would have prevented leakage of the carbon monoxide.

Clearly, this is the type of high-profile case about which people will have strong opinions. Being a plaintiffs’ lawyer, even though this was not a case that I was involved in, I’m glad the injured victims received a good outcome following their day in court. I’m sure there are defense lawyers out there who think the outcome was ridiculous. And, there are probably non-lawyers who have every opinion in between.

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In the past 10 days I’ve received numerous e-mails from friends, colleagues and previously anonymous readers asking why it’s been almost a month since my last blog post.  All of those e-mails brought a huge smile to my face, and a heartfelt thank you goes out to each and every one of you for (1) reading my posts,  and (2) actually being “concerned” about my whereabouts.

The reason for my absence is simple: a five-day medical malpractice trial in Baltimore City Circuit Court from March 23rd to March 29th.  Now, some of you might be asking yourself: “But, wait, if the trial was only five days, why have you not posted in over three weeks?”  Let me explain.

This might sound obvious, but being in trial is hard.  You are in front of a judge and a jury who demand every single ounce of your attention.  It’s adversarial, which is exhausting in and of itself.  And even when the day ends, the work does not.

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Though it seems to happen with less and less frequency these days, the goal of most litigators is actually to litigate cases.  Being successful in trial depends, in part, on the ability to connect with the jury, a relatively anonymous panel of citizens about whom litigators only know very limited biographical information.

Because lawyers do not know who their jurors will be until trial begins, it is relatively impossible to reach conclusions about how a particular jury will respond to a given trial presentation.  As a result, litigators are forced to make decisions about their cases based largely upon personal experience, anecdotal evidence, conventional wisdom, and old-fashioned stereotyping.

Because secrecy is a crucial and fundamental component to the jury process, empirical or analytical studies of juror behavior are few and far between. However, a recent research study by the U.K. Ministry of Justice provided some interesting insight into jury tendencies.

The study’s author examined over 68,000 jury verdicts, post-verdict surveys of jurors, and case simulations with real juries, but only examined criminal cases.  The author’s goal was to answer the question, are juries fair? Read the rest of this entry »

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As my Twitter followers know (@johnjohncord), last Friday I did my civic duty and showed up to the Baltimore City Circuit Court for jury duty. I’ve been living in Maryland since 2002, and I have never been summoned.

Unlike most people called to serve, I was ecstatic—ever since I was old enough to know I wanted to be a lawyer (around early high school), I wanted to be on a jury.

Part of it was that scene in Devil’s Advocate, where Keanu Reaves’ character admits that he can connect with juries because he used to eavesdrop on deliberations (of course, we later learn that he may have been gifted because he was a child of the devil).

It can’t hurt to see first-hand how a jury actually deliberates—how they choose their foreperson, what kind of role that foreperson takes, how they take sides, and what judgments they make of the lawyers, witnesses and evidence. It sounds instructive.

So, with my brown bag lunch in hand, I took the free Hopkins shuttle from Charles Village (jury duty on a dime—they only pay $15 these days) to Peabody, and walked the rest of the way, showing up well in advance of my 8:00 a.m. notice.

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The news and blogosphere has been chock-full of stories the past year about social networking in the courtrooms.  There have been incidents of witnesses receiving text messages while giving testimony, and jurors posting status updates while in the jury box and doing internet research during deliberations.  Some result in mistrials, and many lead to lengthy appeals that delay final justice.

Most courts deal with the reality of social networking on a very reactive basis.  Given the relatively recent explosion of networking sites, courts and rules committees have not yet addressed networking in the courtroom, with most restrictions being imposed individually by judges with little guidance.  The principal issue presented to judges is whether to allow lawyers, witnesses and jurors access to their cell phones that almost universally have access to text messaging if not internet access.  With internet access, the user has direct access to read and post messages on sites like Twitter and Facebook.

Courts examining their policies on electronic communication devices must factor in jury attitudes about the policy.  Jury service is inconvenient at best, and cell phones can minimize the inconvenience by allowing them to contact their businesses and families.  Disallowing cell phones can be a disincentive to serving.

Proposed Rule 18-XXX, set for consideration by the Rules Committee on October 2, 2009, generally prohibits electronic devices in Maryland state courts.  Exceptions are given for judges, officials and employees of the court, attorneys who present identification, and to others who receive special permission from the judge.  Jurors may bring electronic devices into the circuit courts if they present appropriate identification.  The Rule prohibits electronic devices in jury deliberation rooms.  It also prohibits electronic devices in the courtrooms, unless permitted by local administrative judges or the presiding judge of a particular case.  And, those devices must remain turned off unless permitted by the local administrative judge or presiding judge of a particular case.

Under this proposed Rule, it appears that jurors will likely be able to bring their cell phones into the court facilities with proof that they are jurors in a particular case.  It is not clear if those jurors will be allowed to have their phones in the jury rooms prior to deliberations, but the Rule certainly prohibits phones with the jury during deliberations.  Attorneys will need to have court approval in every case to bring in and turn on computers (if capable of “transmitting or receiving messages) and cell phones in the courtroom.

The rule for electronic communication devices in Maryland’s federal courts is that “[c]ell telephones, pagers, portable electronic games, portable laptop computers, Palm Pilots, etc., are permitted in the courthouse, but MAY NOT be used in courtrooms or jury rooms. These items are subject to a security inspection.”  There is no official provision for lawyers’ use of these devices during trial, so a practical approach would be to request permission from the judge.

The question is whether these rules make sense.  In this day and age, it does not make sense for attorneys to have to ask judicial permission to use cell phones, computers (with wireless or broadband cards) and other electronic communications devices in the courtroom.  We need to be able to reach witnesses, research cases online, and send e-mails to our office to prosecute and defend our cases.  The real danger is juror misconduct.  The most we can do is prohibit electronic communications devices during jury deliberations, give jurors specific instructions to avoid communicating about the case in any manner, and inform jurors that they should immediately report to the judge all violations of the rules by their co-jurors.

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I have to admit, I was really late joining Twitter; not only that, but my mother was on it first and tweets more than I do.

While I have joined the Twitter nation, I am still unsure about the best way to integrate it into my professional life.  Providing constant updates to the world has its pros and cons just like any new technology, however it was HBO’s Hard Knock series with the Cincinnati Bengals that made me more cautious about tweeting.

I watched the show and started following a few players from the Bengals and players from other teams. One recently tweeted that the NFL was considering banning players from using Twitter. At first I thought it sounded completely offensive; was this an effort to stifle an athlete’s voice?

Then I started following Chad Ochocinco.  Mr. 85 is a Twitter fiend and was shown tweeting while in the locker room, and, I think, during meetings on the HBO show.

As a litigator, he would be a nightmare juror or witness. Could you imagine a frustrated juror tweeting about which way a split jury is leaning, or about evidence they did or did not consider during deliberation? I can only imagine the issues on appeal.

I wonder how long it will be before questions regarding Facebook, Twitter, or blogging become standard voir dire questions. I’ve already seen them in interrogatories.

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