Archive for the ‘Guest Blog’ Category

When a Juror Calls You a Motherf*cker

Sadly, “M.J.”  didn’t want to attach his name to this story in public.  But I assure you it comes from a prominent top notch NY trial attorney, and is very much a first person account of jury selection.


I picked in Nassau a couple of years ago on a trip and fall.  I stood up and asked the panel whether there was anyone who took issue with the case from the outset simply by virtue of the fact that I represented someone in a trip and fall accident where they were claiming injuries.

A pleasant looking 40-ish year old woman raised her hand and said “You motherfucker.”

I started laughing and said “I’m sorry, what?”  “You motherfucker.  I’m so sick and tired of you lawyers suing everyone for x,y,z…”

This went on for about 3-4 minutes and then I asked her to come outside and we saw the clerk.  I told the clerk “This nice lady feels I’m a motherfucker and can’t judge my case fairly.”

The clerk sent her to a murder trial panel.

I went back into the room and asked the panel “Who else here thinks I’m a motherfucker?”  All but five hands went up and I let them all go.

My adversary turned to me and said “Why don’t we let these five jurors go and start fresh?”  I said “no, these five people don’t think I’m a motherfucker – I’m keeping them,” to which my adversary responded “You motherfucker.”

Update: There were multiple reasons I put up this war-story post, and here they are.

Let it snow, let it snow, oh crap…

Michael JaffeEveryone gets excited for the first snow storm of the year. After a few of them, however….

Mike Jaffe — a past president of the New York State Trial Lawyers Association — appears to have had enough. Today he guest blogs on the call he received this morning from his kids’ school:


5:30 a.m. – house phone, cell phone, other cell phone – please be advised today, Thursday, February 13th, all Syosset schools will be closed. Please be further advised we’ve decided not to reopen until winter is over – what’s the point? When your phone next rings at 5:30 a.m. you can assume schools have reopened and you can wake your children.

For now, one of you should stay home with the kids while the other shovels while snow continues to come down so you can get your car out onto the unplowed road in front of your house and hope for the best getting to work in whatever tortured way you’re going – this includes a two mile per hour drive in bumper to bumper traffic or a slog through the LIRR parking lot to a nasty salt stained train car packed with miserable people who would rather be anywhere but here as long as anywhere but here is outside the polar vortex you recently learned about.

For today’s cruel joke it will snow while you travel and then turn to rain that travels sideways so your umbrella will be pointless (if you have goggles you might consider wearing them – they go well with a suit and tie and overcoat), that rain will then freeze on the ground so there will be a nice layer of impossible-to-clear ice on which half a foot of snow will fall later this evening for your commute home in either bumper to bumper traffic or among the beaten down, miserable, sloggers on the railroad who will by then all have the look of prisoners released from prison only to learn it was a mistake and they must come back.

We do note that it is supposed to warm up early next week – while you might think that would allow us to open schools, unfortunately our buses all have flats due to the Grand Canyon-like potholes which have opened up on every surface where tires would normally drive so we are unable to pick your children up and bring them home.

We would ask you to drop off and pick up but our drivers have noticed many of your cars on cinder blocks in your driveways – apparently having encountered the same canyons our drivers have encountered. On third thought, screw all of this, tell your children to walk to school like we did when we were kids. Who do they think they are? Little coddled brats. School’s open.

Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!)


An old baseball of mine, that I had stitched back together to keep the leather on.

I found an old baseball of mine a few years ago. The white stitches that replaced the red originals were still in it from my childhood repair work. Throwing grounders in the street tended to chew things up.

We didn’t have megastores 40 years ago where you could buy them cheaply by the dozen. A baseball was precious. This one now sits on my desk in one of those plexiglass cases usually reserved for famously autographed balls.

While the calendar claims it’s winter, and Super Bowl conversation buzzing about, appellate lawyer Jay Breakstone sees spring. Pitchers and catchers are reporting to spring training next week, and the SCOTUS fantasy baseball league is getting ready to draft. He guest-blogged baseball a few years ago, and now returns.

Who says lawyers can’t write like poets?


Everyone in my neighborhood knows that I am the lunatic who walks down his driveway every morning in his bathrobe to get the newspaper.  It matters not whether there’s snow on the ground or it’s raining cats and dogs.  Going out like that in the morning is my way of thumbing my nose at the seasons.

It says that I am alive and have not succumbed to winter’s cold.  It shows that I believe that the sun will come up tomorrow, that there’s a bright golden haze on the meadow somewhere and that baseball will soon be here.

It’s not so much that baseball starts in the spring that makes it so life-affirming, but that baseball starts before spring that is.  Baseball assumes, when pitchers and catchers report in mid-February, that the snow on the ground or the chill in the air is just a temporary affliction that time will heal.

The fact that I walk down the driveway every winter morning in my bathrobe to pick up my newspaper, encased in a plastic bag to protect it from the snow and the ice, means nothing to baseball.  Baseball knows that somewhere, spring awaits.  It knows it before the crocuses stick their necks out of my flower beds and it knows it before that first morning that I can go down my driveway barefoot without freezing my toes off.

Baseball is eternal; a child’s game played by men as if they were boys.  There is no time clock in baseball; it is only played in one season – Baseball Season – and games end whenever they end, or when someone’s mother calls them home for dinner.

There is no death in baseball; fathers are fathers and sons are sons and they remain that way forever.  There is nothing outside of baseball; it has it’s own rules and traditions, none of which makes sense in the real world, because baseball doesn’t live there.

Finally, there are no green vegetables in baseball, only Cracker Jacks and peanuts in the shell that you get to throw on the floor and no one yells at you.


Jay Breakstone, lawyer and wordsmith.

No matter what happens – – no matter what Congress does or doesn’t do, no matter if global warming has us frying or the polar vortex has us freezing, no matter which Kardashian suffers a urinary tract infection or if Jimmy Fallon succeeds or fails – – no matter what, on March 31st the Mets will open their season against the Washington Nationals.  A day game.  A place for men to play hookie, once more, and for the world to be re-born, once again.

The magic words?  Batter up!

(Jay Breakstone  is the author of MondayMonday, his weekly ruminations on NY appellate practice and life.)

The Guest Blogging Dodge

Anyone that’s blogged for more than 10 minutes has seen the flood of so-callled writers begging for the opportunity to create “content” for your blog. If, please, please, please, you would only be so grateful as to give them some valuable link juice. As you might guess, it’s a scam. There is never anything in the email that even suggests knowledge about the blogs being pitched.

I hate them. Greenfield hates them. Bennett hates them. Popehat hates them. They are hated by mommy bloggers,  tech writers, and media folkEven the British have a hard time keeping a stiff upper lip about this crap.

But then. I do read the pitches, or at least the first line or two to see if, just maybe, the writer didn’t send me spam but actually had some knowledge about my blog and had a point of  view to share.

And so it was with Max Herman who guest blogged here yesterday. The request to write came out of the blue, but it actually dealt with a current case before our top court, about an issue that reflects upon personal injury law, was an issue that he was closely following, and he had notes on oral argument that had already taken place.

When Max contacted me, he already had a two page explanation of what he wanted to write, along with briefs of the case he wanted to write about.

Max didn’t want to write about any old thing, he wanted to write about this thing that he had been following and that he found interesting. Also, he could actually write in an engaging manner. And he never asked for a link. I had to ask him for his bio link when I published.

And so, while it’s tempting to my fellow bloggers to simply delete the emails when they come in, the truth is that there are people out there who actually have something to say and are looking for the right forum to say it.  Writers gotta write, and once written, would like to publish.

On first blush it might seem that it is’t even worth it trying to separate the wheat from the chafe, but the chafe is so easy to see it makes it easier for the Max’s of the world/

But to the aspiring writer/pundit looking for a platform, please know this about contacting a blogger about a guest post: You had better have a good idea (and an outline) of what you want to say before  you contact us. And that idea should be one that is about a very current issue. Be a Max. No one is interested in generic pablum.

You can pitch us, but you have to pitch us well. Even those sites that don’t accept guest blogs are unlikely to be upset if the pitch is genuine. But the alternative, if it isn’t genuine, can be ugly.

Court to Smokers: Get Sick First

Maxwell Herman

Max Herman

Yesterday I was emailing with Max Herman, a student at Fordham Law School, about a potential series of guest blogs here. The issue was one he was studying, and one that the Second Circuit Court of Appeals had sent over to the New York Court of Appeals for an opinion on how New York law would handle this case of first impression.

The subject: Medical monitoring as a possible cause of action in cigarette cases. And before we had even firmed up the way to approach it as a guest blog series — Bam!  The New York Court of Appeals released the decision today.

Without further ado, I introduce Max Herman:


So you find out that for the last 10 years you’ve been exposed to radiation, dioxin or carcinogenic smoke.  And you also find out that your exposure is due to the negligence of another.  Of course, you haven’t developed any symptoms, yet the doctors tell you your likelihood of developing cancer has been substantially increased.   You’re scared, angry and realize that for the rest of your life you’re going to need medical surveillance if you’re going to beat the disease to its potential punch.

“But who’s going to pay for that monitoring?” you wonder.  I don’t know, but if you’re in New York, I know it won’t be the guy who caused your exposure.

In a surprising (to me and several Federal District Courts) turn of events, the New York Court of Appeals released a decision today answering two questions asked by the Second Circuit:

Does New York State recognize an independent claim for medical monitoring?

And if so, what are the elements and when does the limitations period accrue?

The highest court in the state answered the former in the negative and declined to answer the latter as academic.

The questions were asked as a part of Caronia v. Phillip Morris USA.  In Caronia, a group of smokers brought suit seeking a court-administered fund for LDCT, a lung cancer monitoring system that substantially reduces lung cancer fatalities by detecting tumors earlier than other available technology.

Marlboro and Kids

The Marlboro Motto: Hook ‘em early.

Each smoker was over the age of fifty, had smoked for 20 ‘pack years’ (a pack year is a smoker’s years as a smoker multiplied by the number of packs smoked per day), but had yet to develop disease.  Thus, because they had a disproportionately high risk of developing lung cancer, they reasoned that Phillip Morris USA, which designed, produced and marketed the inherently defective products, should pay for the fund.

In the decision, written by Associate Judge Pigott, the court finds itself loath to craft a new, non-traditional tort claim without the safeguard of an injury requirement.  He explains that dispensing with the requirement would deplete both judicial and defendant resources by allowing “tens of millions” of potential plaintiffs a new avenue of recovery, potentially to the detriment of plaintiffs who actually develop disease.  In short, the judges do not have time to hear all the cases and the defendants won’t be able to pay all of the victims.

The court also recognizes its limitations, admitting to a lack of “technical expertise necessary to effectively administer a program heavily dependent on scientific principles . . . .”  Thus, the court hands the issue off to the legislature, which, the court suggests, is better suited to mulling over the impact of a medical monitoring cause of action than the judicial branch.

Based upon the policy arguments of ‘limited resources’ and ‘lack of expertise,’ the court found itself unwilling to allow the smokers in Caronia to proceed on a medical monitoring claim.

There was, however, some dissension on the Court of Appeals:

Where, as here, it is within the Court’s power to provide a vehicle for plaintiffs to seek equitable relief capable of forestalling profound suffering and death, judicial hesitance and legislative deference only serve to thwart the ends of justice.

Thusly, Chief Judge Lippman begins his scathing dissent, pointing out not only how worthy the plaintiffs in equity are of remedy, but also how unfortunate it is that the court failed to adapt to a changing world.  He goes on, discussing the court’s squandered opportunity to craft a claim for victims of exposure and simultaneously providing safeguards and plaintiff thresholds that would prevent the sapping of resources.

Indeed, the world we live in today is not that of Blackstone.  Tort law developed in a century when injuries were a consequence of burgeoning industry.  Hands crushed in compactors and legs lost on railroad tracks are neat (on paper) and quantifiable.

Today, we face myriad dangers from unseen, yet equally deadly forces and actors.  Molecules and energies that trespass on our bodies due to the negligence of others are no less real than blood spilled by an unguarded saw.  And yet because we cannot see them, we allow those who cause the trespass to go undisturbed.

Law, like all things, must adapt or face obsolescence. A legal system that does not afford remedy until the worst possible scenario occurs does not conserve resources (as Chief Judge Lippman noted, “the cost of monitoring and treatment upon early detection pales in comparison to the expenses of treatment post-diagnosis, not to mention those incurred by wrongful death suits.”).

A legal system where an actor may be negligent yet avoid consequences because their victim has yet to fall ill is not a deterrent.

In all, the most regrettable aspect of the Court of Appeals’ decision is that lead plaintiffs in big cases against Phillip Morris USA and other mass tortfeasors are almost invariably dead due to their manifested injuries.  After today, asymptomatic plaintiffs must continue to wait for their own injuries to manifest before seeking remedy in litigation; litigation that, in the style of Dickens, may very well outlive those asymptomatic plaintiffs.

Lawyers, Politics and Civility


Mark Bower, today’s guest blogger.

Mark Bower steps in today to offer a guest blog on lawyers and politicians:


Several years ago, with considerable fanfare, our courts put in place a new Code of Civility. The Appellate Divisions recognized that the loss of courtesies and honor between adversaries was hurting the profession and the pursuit of justice.

After the initial fanfare, the code fell into widespread disuse, largely because our judges refuse to sanction abusers. With the desuetude of the code, the level of incivility has increased to the point that now, some attorneys are publicly musing about surreptitiously recording legal proceedings on their cell phones, so that the abuse can be documented and put on display. However, surreptitious recording is itself a form of incivility, and so the cycle goes ’round and ’round.

This is worsened by our judges’ belief that “fairness” requires everyone get a little of what they want, and sacrifice a little of what they want, so that if each side is denied 20 percent of what they asked for, that automatically is “fair.” Sort of like the wisdom of Solomon, except the cutting the baby in half merely produces two halves of a dead baby, and in today’s uncivil climate, one cannot count on one side to sacrifice their self-interest to save the baby’s life.

That one side might be clearly right, and the other clearly wrong, doesn’t matter; all that matters is that each side gets a little and loses a little, because that is “fair”.

Will McAvoy put it nicely: If the Republicans do fourteen ridiculous things, and the Democrats do one, does the media have to concoct and report thirteen fictitious things in order to be “fair and balanced”? (“The Newsroom,” season closer, “Election Night, Part II,” at approx. 41:30.)

The result of this misconceived calculus is that the more outlandish one’s demands are, the more one benefits by having an equal portion disallowed. Reasonablemess is disproportionately punished, while being outrageous is disproportionately rewarded. Misconduct is promoted, and good conduct discouraged.

This insanity is on full display in Washington. Although Grover Norquist’s stated goal is to shrink government to the size that it can be drowned in a bathtub; although Ted Cruz plainly stated he would shut down the government rather than allow the Affordable Care Act to go into effect; although most of the GOP wants to eliminate the Departments of Education, Energy, EPA, etc., and are delighted that they are shut down; in the interests of “fairness,” the mainstream media gives prominent play to grandstanding chickenhawk politicians who enthusiastically support the shutdown but pose with veterans at war memorials to glom onto their heroism, and give equal time to spinners who proclaim the shutdown to be the president’s fault.

Will McAvoy’s question hangs heavily in the air.

Our country’s international standing is going into the toilet, and we look like a nation of fools, but the right-wing is genuinely indifferent. If the USA defaults on its national debt, and the most secure and stable investment ever known to man becomes unpredictable and volatile, doubtless this will also be spun as the Democrats’ fault, and that Big Lie, too, will get equal play with the media.

Which brings me back to the demise of civility. The rules of discourse have changed on a broad scale. Fairness, candor, and honesty are devalued, and outrageousness and hyperbole rewarded. On the other hand, occasional displays of professional courtesy get nice recognition, but they are noteworthy because they are rare. The decline of civility, and its insidious effect on fairness, is a pervasive mindset problem, for which I see no ready solution.

RIP: Irwin Kosover

A guest post obituary today from Lee Huttner:


Irwin Kosover died this week at age 80. He was a fixture for many years in Kings County Supreme Court, representing defendants only.His cast of carrier clients included Empire Insurance and Eagle Insurance. He was well known for his no nonsense approach, which made some younger attorneys feel that he was a bully — only to learn over the years that he actually was helping toughen up his young adversaries.

It was well known among the “regulars” in Brooklyn that he hated motions dealing with “serious injury” threshold because he believed all lawyers should make a living. Even though he thought most cases were exaggerated, he usually “lost” the threshold motions. His “file” was a single sheet of paper.

Irwin maintained an office at 26 Court Street for many years. He refused any and all offers to buy him lunch, preferring to eat in the office. He once promised he would let me buy lunch upon his retirement. He knew that day would never come as he knew that he would work to his dying day.

Many attorneys have provided stories about Irwin. I’m sure he would be happy to know that he was respected. A common thread throughout the stories was that he was tough. Young attorneys thought he was mean and abrasive. Irwin would always smile when a young lawyer figured out that it was “shtick” from a tough old fashioned lawyer. One attorney tells how she first met Irwin as a litigant. He was tough and pushed a settlement. He did not want to see her get nothing-but not too much either.

Most of all Irwin loved his wife. When she was suffering from the cancer that eventually took her life, he would say she was his life. When she passed a piece of Irwin died as well. Hopefully they are together again. He will be missed.

What Government Data is Public? What is Private?

My last two posts dealt with Freedom of Information requests to state government for data. Both decisions said that governments were allowed to evaluate the release of information based on the reasons for the requests, balancing out the privacy concerns of those whose information was sought.

The  New York decision prohibited the transfer of mugshots and arrest data to a mugshot website (whereupon fees would be charged for their removal), and then a SCOTUS decision came on lawyers’ requests for Department of Motor Vehicle data so that they could solicit people for a class action against auto dealerships.

In other words, some government information can be made public, some remains private, and some is semi-public depending on who does the asking.

Into the comments came a response  from a long-time commenter and mostly-retired software engineer, Old Geezer (a/k/a Tom Cikoski, bio and head shot at the bottom).  I thought it should be elevated to a guest blog, so with his permission, here it is:

In a sense all this talk of public versus private versus private/public versus public/private data becomes mooter by the day. (Mooter?)

The only data that is and typically remains totally private any more is that which has not ever been rendered into electronic form. Any type of data store that is connected to the internet is subject either to innocent revelation (as in “I forgot to PW that folder”) or to deliberate hacking by folks much smarter than the defenders of the data store.

So the particular data store is not internet connected? Well, for those we have individuals called “leakers” these days who take “thumb drives” and trade them, brimming with data, for money, or for publicity.

And to think, Daniel Ellsberg had to stand over a hot copier for hours in order to leak!

It isn’t just ambulance chasers who go after such data, it’s also the pizza parlor down the street that has discovered the putative value of spam email or junk phone calling.

Two years ago we went from land line telephone to VoIP telephone at home. Within months we became the target of multiple daily telemarket and scam calls — so much so that I had to buy a call blocking device to filter them out. Even now, my call blocker, which holds 80 blocked numbers, must be recycled about every six weeks to deal with the new numbers that attack on an almost daily basis.

Don’t even get me started on spam email.

And this all stems from data which, at least in some sense, should be considered private. How do insurance companies know when I reach certain age milestones? They process the DMV data from the state. How do health insurers know my Medicare status? The government supplies everything they need — with a smile.

So, your “private” data is not only subject to public view, but also to public sale as well.

Note that our home number is on the so-called “Do Not Call” list and has been since the beginning. So every one of those annoying phone calls is in some sense illegal. That does not stop the calls. Legality is irrelevant.

And so, great and gallant judiciary, amuse yourselves by fighting that evil data protection windmill. Unless something takes down that mug shot business as a form of extortion, or the ambulance chasing as an ethical violation, the relevant data, IMHO, won’t stop flowing, SCOTUS or not.

old geezer

Tom Cikoski, who considers himself an Old Geezer, is an avid blog reader and sometime blog commenter using that same sobriquet in a variety of fora. Although mostly retired from software engineering, he still consults on IT issues part-time, and also dabbles in film-making, comedy performance, playing drums in a Scottish pipe band, ranting about various topics, and other assorted forms of geezer foolishness.

The “New Normal” After Boston?

In the wake of the Boston Marathon bombings, I wrote down some of my thoughts about the event (Boston Marathon Bombing — And the Lives We Lead), since the race is one of my favorites.  One of those thoughts, at the end, was this:

Some psychotic(s) want to affect the rest of us by terrorism. But I’m not interested in losing my fond memories, or stopping the creation of new ones.

This guest post below addresses that very theme; it was an essay written by my running club president Steven Stein for our weekly newsletter, which went out last night.  Last weekend he ran a race in Central Park and noticed that things had changed. A lot.

Since Stein grew up outside the U.S. he brings a perspective different than most to the concepts of freedom and security. It is reprinted here with his permission:

SecuityScreeningSign1It was a clear, crisp, beautiful spring day. 7:50 a.m. on a Sunday morning and New York City was just beginning to wake and stretch. The drive into Manhattan from New Rochelle was quick and uneventful, and I parked in my usual parking lot on 66th Street just a short block walk from Central Park.

Everything was familiar and normal. The temperature was in the low 50’s and I decided there was no need to check a bag for the race. This decision was made in part due to the pleasant temperature as well as a warning from New York road Runners that new security measures had been put in place since 4/15/2013, the Boston Marathon.

As I headed up the parking lot ramp onto the street, I saw the normal flurry of activity on the streets. Runners with their race bibs pinned to their shirts were scurrying towards the park. Parents were leisurely pushing strollers towards the park. In fact, everyone I saw on the streets seemed to be gravitating towards the park on this sun filled morning. A perfectly normal spring day in New York City.

I entered the park on Central Park West and 67th Street, by Tavern on the Green. This is when I first encountered the New Normal. A Security Checkpoint! No entry without being asked to show contents of your bag, including the contents of my Spi Running Belt strapped around my waste.

Mixed emotions. I was happy that there were new security measures in place to keep us all safe.  Then I thought; “will I ever be able to walk into the Park without being subjected to a security search? Is this New Normal just applicable to events in the Park, or are these permanent measures?

A few hundred yards into the park, I saw a young guy looking inside his backpack on a park bench. Did he go through security screening? Should I tell someone I saw a backpack? What did this guy look like? Should I remember his face? What is the new normal? What are the rules? Why is a perfectly normal morning being spoiled by these abnormal thoughts?

PortoPotty SecurityAs I made my way deeper into the park, in the distance I saw the normal long line of Porta Potties. Good thing they are still at the race. Something’s normal. But as I got closer, I saw that the New Normal included a checkpoint to get into the Porta Potty Area. A big Yellow sign read Security Screening Area. 

I looked left, and I saw a NYC Police security crane with a security booth lofted 40 – 50 feet into the air with cameras pointed in every direction. Another Big yellow security signs read. Attention: Due to Enhanced Security Measures, Baggage Will Only Be Accepted In The Provided Clear Bags.  Another New Normal. The $25 New Balance red backpack I purchased last summer specifically for race-day will now lie unused in my closet at home.

This was my first organized race since April 15th, and the National Anthem took on a deeper, more meaningful meaning than ever before, as I thought about those who lost their lives and those who were badly injured in Boston. I thought about the land of the free and the home of the brave, and how thankful I was to be living in the greatest nation in the world. The word Free stuck around in my mind for quite some time. Are we becoming prisoners in our own free land?

The race itself was as normal as it ever was. Crowded in the beginning and then it opened up after the first half mile. After the race I walked over to the post-race festival, set up to support lung cancer research and awareness through the Thomas G. Labrecque Foundation. In its 10thyear, the event was founded in honor of former Chase Manhattan Bank chairman and CEO Thomas G. Labrecque, who died of lung cancer at age 62. Labrecque was the model of good health and a non-smoker all his life.

Another security checkpoint to get into the festival area on Ramsey Field!

As I made my way back to the parking lot on West 66th street, my thoughts turned back to the New Normal. Is this just a knee-jerk reaction? Are the organizers and security professionals worried about copy cats? Was this a reaction to an isolated incident in Boston, or should we be expecting these events on a more frequent basis? Will security measures be eased any time soon?

Whatever the answer, there is a New Normal. Just like 9/11 changed forever the way we fly, the way we travel, and the way we enter buildings, the Boston Bombings have changed the way we gather and congregate for our organized races.  We say we will not be defeated, we will not be terrorized. But they have already changed what is normal, and enforced a new, less free normal existence upon us. What is the right balance between being prudent, protecting a crowd from a repeat incident v.s. being free and not thinking about such threats all the time?

I grew up in a country where we left our front doors open when I was a young kid. As the country became more and more riddled with crime, most houses installed burglar alarms. Soon alarms were supplemented with burglar bars on every window, then a security gate on each exterior door, and in no time high fences and walls surrounded most residential properties, then electrified fences were installed, and each neighborhood had a private security company on call to protect you as you arrived home and walked you to your front door.

Ten years went by and we realized we were living in our own fortresses. Free in our own self-created prisons. With each security feature added, at first it was uncomfortable, but we soon got used to it and it was normal.  But when one looked back at the open doors with no gates and no alarms to the prison we had created for ourselves, it was an enormous change.

My point – although I do not have a solution, lets be prudent about what security measures we put in place, let’s be safe, let’s rely on the security professionals and law enforcement to protect us, but let’s be careful not to imprison ourselves in our own free country.

Should Jurors Be Allowed to Ask Questions at Trial?

Peter DeFilippis

Peter DeFilippis

Out in Arizona, Jodi Arias is on trial in a high profile case in which she is charged with the murder of her lover, Travis Alexander, after a day of rough sex. He’d been, according to news accounts, “shot in the head, stabbed and slashed nearly 30 times and had his throat slit.” She claims self-defense.

But what jumped off the page for one of my brethren of the New York bar, Peter DeFilippis, is that jurors were allowed to ask questions. That isn’t something we see too often around these parts.

Without further ado, I turn my blog over to the talented DeFilippis as a guest blogger, who after 24 years of practice, has something to say on the matter….

The jurors in the highly publicized Jodi Arias case recently submitted to the court over 100 questions for the defendant to answer even after the prosecutor spent days grilling her over every last detail in connection with her self-defense argument. Arizona is one of just three states that allow jurors to pose questions to witnesses after prosecution and defense lawyers have finished their questioning. From the perspective of someone who’s spent some time in the well of the courtroom, I wish New York judges would in the interest of justice, allow jurors to pose additional questions of the witnesses in civil cases even if one side objects to the practice.

A universally frustrating aspect to civil trials is that once jury selection concludes the lawyers can’t communicate with the jurors. Generally speaking, jurors sit quietly during the trial presentation, they are expected not to ask questions, and perceive their role during the trial presentation as receptive rather than actively inquisitorial. If counsel were to so much as say hello to the selected juror in the elevator it may land the lawyer and juror in hot water.

During the trial the silence between the attorneys and jurors can be deafening: jurors yearn to ask the lawyers questions and lawyers would love to know more about what the jurors are thinking about their cases. When we interview jurors after a case has ended they sometimes wonder why we did not ask witnesses certain questions or probe specific areas. They are surprised to learn that we are often prohibited by the rules from discussing or presenting many seemingly relevant facts or issues. For example, we cannot divulge to jurors whether or not a defendant has insurance coverage applicable to the claims of injury. Disclosure of this to the jury may potentially result in an instant mistrial.

One way to alleviate this tension is to allow jurors to pose and submit their own written questions to the judge after the attorneys have finished their direct and cross-examination questioning of a witness.  This would allow attorneys to clear up any issues, misconceptions or concerns BEFORE jury deliberations begin.

There is no New York rule prohibiting this practice. Rather, the case law says it is a matter left to the discretion of the trial court. Some judges will advise at the outset if they permit jurors to take notes and/or ask questions. In my trial experience, note taking is fairly frequently allowed, however juror questions of witnesses are rarely sanctioned unless all sides consent. I have made the request on several occasions, but when defense counsel balks, judges will usually not initiate the process though they may properly do so.

If allowed at trial, essential to the process is for the judge to ask jurors if there are any questions and explain the mechanism whereby they could ask questions, i.e., whether it be during direct or cross examination or when the witness is about to leave the stand or at some other time. I think informally allowing jurors to raise their hands and orally ask questions, without judicial screening or consultation with counsels, could be highly problematic. Our high courts have held this is not the best practice. Conversely, utilizing written questions lends itself to an orderly function as opposed to a hand rising session which might invite a cacophony, confusion or other courtroom chaos.  Also, forcing one side or the other to publicly object to a juror’s question would strike me as highly prejudicial.

Well thought out and manageable procedures exist and are codified in other jurisdictions, such as New Jersey, where juror questions are allowed (See, NJ R GEN APPLICATION R. 1:8-8) even if all sides do not consent. The court makes its determination after all parties have been given an opportunity to address the issue, but they need not fully consent for juror questions to be implemented. The questions are first written down by the jurors and then presented to the judge.

The judge then takes the attorneys into chambers for a conference about those questions. Argument and clarification are held beforehand between the court and attorneys outside the presence of the jurors.  The judge tries to work out an agreement by the attorneys as to which questions should be asked, and whether the form of the question proposed by the jury should be altered or modified at all. If there is not agreement, the court decides the issue on its own. If allowed, the judge reads the question, in original form or as modified, to the witness. Since the judge is screening the questions, clearly improper ones are not asked. Attorneys shall then, if desired, be permitted to reopen direct and cross-examination to respond to the jurors’ questions and the witness’s answers.

I think this process insures that the jury is better informed and makes its decisions based more likely on facts gleaned from testimony under an oath than on conjecture. The individual juror is presumably happier and more satisfied if inquiries are answered via live testimony as opposed to not at all or by speculation in the deliberation room (which is frowned upon by the court). Keeping jurors interested and engaged through this active participation in the legal process is of paramount benefit to the litigants and jurists. Perhaps it might increase attentiveness and help to mitigate the tedium and boredom often complained of in connection with serving as a juror on a trial (especially a lengthy one).

Hearing from the jurors in this manner also helps the attorneys to gain some insight into the jurors’ thoughts and hints of major concerns with the case. Savvy lawyers may alter the presentation of their side based on the questions they are receiving and cover missing areas. This may also head off jury confusion which often leads to unnecessarily lengthy deliberations or inconsistent verdicts.   A definite plus is the insight gained by everyone involved from learning some of what is in the jurors’ minds before they make their ultimate decision.

Based on the above points, I would urge New York State judges to consider allowing our jurors to pen and submit written questions of witnesses during civil trials, as codified in other neighboring jurisdictions. Further, they should promote this open, interesting and interactive procedure during their trials even without the consent of all sides, as defense counsel may oppose juror questions strictly as a display of caution or matter of custom. I feel increased juror participation will aid our judicial system in achieving its stated, well known, goal which is to seek to provide justice for all.

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