Publish and Perish: Law Professor’s Writing on His Jury Experience Leads to the Overturning of Verdicts

martin_02Most law professors relish any reliance of a court on their academic writings. This may not be what Seton Hall Law Professor Robert Martin had in mind. Martin wrote about his experience as a juror in the New Jersey Law Journal after he and his co-jurors found a grocery store liable for $876,000. A New Jersey appellate court has now ruled that the publication is a sufficient reason to overturn the verdict based on his described conduct.

Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.

In this case, Martin was not only allowed to be a juror, but was selected as the foreperson. The case involved Shopright stores and a slip and fall allegation. He acknowledged in his article how he explained legal concepts to the jurors in a type of spontaneous lecture on issues like proximate cause.

Martin notes his surprise that none of the lawyers used peremptory challenges to exclude him. He is not only a law professor but a practicing lawyer and New Jersey state senator.

The trial judge ruled that Martin had overstated his impact on the other jurors, but the appellate court viewed the matter differently.

Here is an excerpt from the December 4, 2006 article that the Court referenced in the opinion:

My selection as an actual juror certainly came as a surprise. I had assumed – because I was a state senator, law professor, practicing attorney and father of a local lawyer – that the judge or at least one of the trial lawyers would seek my removal.

Presumably, either of the trial lawyers could have excluded me, since neither had exhausted all of his peremptory challenges. As for myself, I did not object, trusting that – if the parties wanted me to serve – I could perform the task fairly and impartially.

. . . .

I tried as best I could to blend in with my colleagues . . . . requesting that the court attendant not refer to me as senator and reminding other jurors that each of us had an equal role in deciding the outcome of the case.

. . . .

[I]n this case, all six jurors had found the plaintiff highly credible and, conversely, had determined that the defendant had misrepresented the facts after having failed to exercise reasonable care.

. . . .

I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request)[.]

. . . .

Additionally, jurors are usually prohibited from taking notes[.]

. . . .

[J]urors might easily conclude that they receive second-rate treatment – despite platitudes extolling their invaluable contributions. In our case, for instance, we were informed that the trial would be extended an extra day to accommodate a physician scheduled to testify for the defense. Yet neither the judge nor lawyers bothered to inquire whether that accommodation would conflict with jurors’ schedules, thus ultimately forcing one (unemployed) juror to cancel a job interview and another to rearrange long-standing travel plans.

Other seemingly small matters proved irritating. Jurors were cautioned that they could not drink water during the trial because it would be “distracting” . . . . Moreover, during the morning and afternoon “coffee” breaks, jurors were sequestered in the back room without any amenities – including coffee. And needless to say, jurors were keenly aware that the five- dollar per diem compensation that they would eventually receive would barely cover the cost of lunch, let alone the cost of gas for travel to and from the courthouse.

Yet, paradoxically, when it ultimately came time to render a verdict, our jury was then bestowed with immense power and responsibility. In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).

. . . .

In determining the monetary award, the jury relied on a version of the time-unit method for calculating damages. Still our “formula” was hardly scientific. And it is worth noting that some jurors had initially suggested amounts that differed by well over a million dollars. Yet one thing seemed clear: none of us would have voluntarily traded the plaintiff’s neck surgery (with the insertion of a steel plate) and indisputable life-long pain for any substantial financial amount.

Nevertheless, we also did not want to be perceived as a “run-away” jury. So we concluded that it would not be appropriate to award a seven-figure amount in damages. Whether our ultimate determination of $876,000 was “fair,” of course, is certainly debatable (and the defense attorney later indicated that it would be appealed).

Over the course of our deliberation I became increasingly aware that other jurors were relying on me for assistance, especially in dealing with abstract legal concepts and procedural issues. For example, I was asked to clarify what the judge meant by “proximate cause” and its significance in proving a negligence claim. I do think my familiarity with the law proved helpful to fellow jurors; but I remain undecided as to whether it’s advisable to have a lawyer serve on a jury – especially as its foreman. I am convinced that in our case my opinions swayed other jurors and were extremely influential in the final outcome.

For the opinion, click here.

For the full story, click here.

4 thoughts on “Publish and Perish: Law Professor’s Writing on His Jury Experience Leads to the Overturning of Verdicts

  1. I would think that the lawyer’s for both parties were incompetent, or neglectful in including Senator Martin. What is fascinating though is the issues he raises about treatment of juries. Like so much in our society important functions get short shrift if they involve average people. many people avoid jury duty because it represents a hardship. I have served on juries in NYC and while the trials were interesting experiences, the treatment of us a jurors was inconsiderate, rude and thus made the experience unpleasant. I was lucky in that I had a job that caused me no economic hardship in serving, many others weren’t as lucky.

  2. I forget which thread we were talking about controlling language as a form of repression, but here is just another shining example.

    From Bill O’s Funhouse: Bernard Goldberg saying dictionaries have Left wing bias.

    http://www.huffingtonpost.com/2009/03/19/bernard-goldberg-dictiona_n_177123.html

    Double plus ungood.

    But then again, I’d be willing to bet Mr. Goldberg never finished the dictionary. The plot was too complicated for him. And no Mr. Goldberg, I won’t forgive your ignorance.

  3. To paraphrase Bismark, “[verdicts] are like sausages, it is better not to see them being made.” Pray tell why would he write such a book?

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