Well, it’s over — fortunately for everyone, because if I had to hear one more person observe in a tone of unconvinced weariness that “it’s the best system in the world,” I’d have doused my cell phone in cheap bourbon, lit it on fire, and swallowed it whole in a crazed attempt to get excused from the unrelieved tedium of American civic life. “The best system in the world”? Yeah. Sure. Whatever you say. Pass me a machete; I’ll hack off the defendant’s hand in a public square and we can all get back to our lives.

Yeah, yeah, yeah, SAVE IT. Jury duty is important blah blah blah judgment of one’s peers blah blah blah participation in the process blah blah blah blah BLAH BLAH BLAH. I got the summons and I showed up and did it, so please do not send the U.S. Marine Corps Band over to my apartment to play the “God Bless America/Here Come Da Judge” medley, because I get it. If I didn’t get it, I would have gotten my doctor to write me a note saying that my head had fallen off. Oh, excuse me — I meant to say “another note saying that my head had fallen off.” But here’s the thing. I run my own business, and I know that’s not the court’s problem, but when I have to haul my ass out of bed at seven in the morning after four lousy hours of sleep, wedge onto the train with eighty billion other people, stand patiently while a guard whose beer gut has its own area code waves a metal-detecting wand over my belt six hundred times (“Must be the buckle.” “No kidding. What tipped you off — the shiny part that’s MADE OF METAL?”), then sit in a chair designed by the Marquis de Sade and listen to testimony that Ron Popeil should really grab the rights to as a surefire insomnia-buster, I’d like to do it with some measure of dispatch. I do not want to sit around in the jury room for AN HOUR because one of the attorneys’ Jaguars wouldn’t start. I do not want to dick around downtown for A TWO-HOUR LUNCH — like, who needs a two-hour lunch? We all have teeth here! Give us fifteen minutes to use the bathroom and undergo nicotine therapy, hand out some Lunchables, and let’s GET THIS PARTY STARTED.

But before the booster rockets on this rant really start firing — and you’d better buckle up, because we’re headed for the far side of the moon, and if I had to learn the fine points of metatarsal anatomy, I’ll damn well share it with the world — I’d better introduce the cast of characters here. Not all of them play a big role, but since I went ahead and gave them nicknames in my notebook already…

The Honorable Impatient Billy Crystal. That’s the judge. The nickname is self-explanatory. When he speaks, he sounds — and sort of looks — like Billy Crystal. And he’s impatient, usually in the direction of the attorneys. I really wish I had a couple of his eye-rolls on video. One specific flat stare in response to a stupid objection, which he held for a good ten seconds before shrugging, “All right, come on up here,” had the whole jury stifling giggles.

Super George and The Walrus. Attorneys for the plaintiff. Super George looks like the product of an unholy union between George Hamilton, Jack Lord, that yucky puppet on Tales from the Crypt, and a wide-shouldered superhero in his freckly middle age. Super George is generally personable, but comes off like the kind of guy that, when you talk to him at a party, is all, “Huh? What’s that? Sorry, didn’t hear you?” so you throw out your best material, but you have to repeat it, so it’s not funny anymore. I just get that feeling about him — I don’t know why. During opening arguments, Super George had that same catch in his throat that I get when I get anxious speaking in front of people, and he’s clutching his wrist with one hand, and the other hand is clenching and unclenching the front panel of his suit jacket. The Walrus has an overbite and a potbelly and a walrus-y mustache and wears his eyeglasses on top of his head. In a Best Lawyer In The World contest, Super George and The Walrus would come in second. Every other lawyer on earth, including dead ones? Tied for first. More on that later.

D3. The plaintiff, Dr. Doris Dingle. I wouldn’t have mentioned her real name, except…”Dingle.” Hee. The humor’s built right in. She’s an African-American professor of a certain age who has a wicked hair tint going on — like, usually it looks sort of reddish-brown, but with the light behind her, it’s pink. She’s given to punctuating the proceedings with inappropriate grunts of pain. Or “pain,” depending on what you believe about the case. Again, more on that later, but either way, it’s distracting and annoying and comes off like a sympathy grab.

Crash Davisberg. Attorney for the defendant. Tall, looks sort of like Noah Wyle, wears flawless suits, fond of biting into and spitting out the word “correct?” on cross, and seventy times the professional the case calls for. Belongs in the big show, not down here, although he really needs to vary his Dramatic Arm Movements, because he has exactly two: Tucking One Arm Under The Other While Grasping Chin In Faux Puzzlement, and Clutching Forehead In Mock Disbelief While Waving Pencil About.

Dr. Mark Antman. The defendant. Never showed up in court, thus puncturing the jury’s fantasies about him swooping in, clad in a black Tick-style rubberized suit complete with antennae and cape, and announcing, “Ant Man — tooooo the rescuuuuuue!”

Danny Boys I and II. The court officers. Nice guys who seem to sympathize with our plight.

Herb. Court clerk. Just looks like a Herb, somehow (or maybe a Stan). Dresses like my dad in that his clothing doesn’t exactly clash, and yet it doesn’t exactly match, either. Showed me and the other smoker on the jury a secret smoking patio, in return for which favor we permitted him — and, by extension, everyone else who had to deal with us all day — to live.

Dark Buffy and Blonde Macy. The court reporters. Dark Buffy looks like a brunette Sarah Michelle Gellar; Blonde Macy looks like a blonde Macy Gray. Dark Buffy tends to stare at the various participants with ill-concealed disdain. Blonde Macy just smirks at everyone.

And the jurors…
Wide-Eyed Wonderer, The Forewoman
Curly Sue, Juror #2
me, Juror #3
Brendan Sexton IV, Juror #4
Christine Dior, Juror #5
Your Friend’s Incredibly Cool Mom, Juror #6
Taller Cuter Harry Shearer, Alternate #1
Quiet Woman In Excellent Hat, Alternate #2

And now, the case. It’s complicated, and you probably don’t care — Lord knows I don’t — but it’s a medical malpractice case involving podiatry. [Poke. Poke poke! POKE!] Hey, wake up. Okay. The plaintiff, D3, alleged that the defendant, Dr. Antman, performed unnecessary surgery on her feet in 1993, and also that he didn’t do it correctly, so that said surgery also exacerbated pre-existing foot conditions; caused her continuing foot pain that forced her to quit her job and go on disability; and basically ruined her life.

We did not find in her favor. And now that she’s done suing her doctor, she should really turn right around and sue her “attorneys.”

I will say in defense of Super George and The Walrus that even a brilliant attorney would have had a difficult time bringing the required preponderance of evidence to bear here. The plaintiff has had foot problems since the early seventies, she’s obese, she’s had surgery on her feet before, she’s gone to a good fifteen or twenty doctors over the applicable time period, and getting an accurate and/or relevant timeline out of all that is not an easy job. But Super George and The Walrus…to categorize them as “not up to the task” doesn’t even begin to describe the fundamental incompetence at work here. Submitting items into evidence, conducting direct examination, the proper form for objections — name an element of trial litigation, and they sucked at it. Noisily. They consistently behaved as though they’d gotten their law degrees, and the case files, about thirty seconds before we walked in and took our seats, and at first, we found it amusing, sort of like Mariah Carey’s nervous breakdown. A couple of days in, we started to get angry. A third-grader would have presented a more organized, linear case; a third-grader is better prepared and more familiar with the rules of order in a courtroom. The Walrus in particular struggled to pronounce HIS OWN CLIENT’S NAME properly; couldn’t ask a question that wasn’t objected to as to form, and when that happened, couldn’t regroup to rephrase the question, often approaching the bench so that Impatient Billy Crystal could suggest a rephrasing for him; couldn’t keep his notes in order; couldn’t keep the pertinent dates straight in his head; on and on and on. After the first day of direct testimony, I think IBC told The Walrus to have a seat for the remainder of the trial and let the barely-an-improvement-in-that-department Super George handle the questioning, and we thanked IBC in our heads, because it had really started to remind me of eighth grade, when as part of our English unit we’d have to memorize a different poem on alternate Fridays and stand up and recite the poem from memory in front of the class, and when one of our classmates dropped a line and stood there endlessly as the tides shifted and glaciers approached our school and presidents came and went from the Oval Office, the girl would stand there, absent calm and stark terror coexisting on her face, searching for a handhold on the next line, panicking utterly as she tried to decide whether to start over from the beginning or repeat the previous line or throw up her hands and admit that she’d lost the rest of the poem or what, and the rest of us would sit, utterly still but with every muscle in our bodies clenched, praying, “Please, God, let her get it. Come oooooon, come on come on, it’s ‘And admirably schooled in every grace,’ you just had it at lunchtime,” shooting thought rays containing the forgotten line at the unfortunate’s head as she reddened and her fingers twitched almost imperceptibly at the ends, and our teacher Mrs. Scher would uncross and then recross her legs and arch an eyebrow and suck her teeth, which meant that the countdown had begun and the girl currently in front of the firing squad had only a few seconds more to come up with the line before Mrs. Scher emptied her weapon with, “Well, it’s clear that you’re unprepared. Sit. Down,” and make one of those how-dare-these-pubescent-plebes-waste-my-time slash marks in her grade book, and nobody in the room breathed as we hoped that the victim could save herself but at the same time resented her for putting us through the cringing agony of watching her flail, and that’s how we felt about Super George and The Walrus. On the one hand, we felt sorry for them; they didn’t have the first clue how to put on a persuasive case, and watching IBC chew them out for their ineptitude during sidebars pained us, and we’d sit in the jury box “taking notes” (read: writing out the questions they should have asked instead and underlining them heavily, or angrily scribbling “try watching an episode of Law & Order sometime because THIS IS KILLING US”) and tending a faint flame of hope that they’d finally realize Crash Davisberg had them on the ropes and settle out of court already. On the other hand, the whole thing had gotten too painful to witness, and on top of that, we begrudged them the waste of our time.

And the plaintiff’s “expert” witnesses…ugh. “Expert” at hypnotizing all of us into a state of annoyed boredom, maybe. One, a Dr. Chao, had such an intractable accent that we could scarcely understand him. Another, a Dr. Lazar, evidently did not feel that appearing in court warranted hygienic niceties like buttoning his shirt properly or combing his hair. And neither of them had any experience in podiatric surgery, which made them relatively unqualified to comment on D3’s particular problems — not that that stopped Dr. Lazar from getting hopelessly, transparently defensive about that fact and shooting what little remained of the plaintiff’s case in, uh, the foot. The words “cram it sideways, Lazar” appear in my notes more than once. Apparently, he wrote a book about feet. Let me just go out on a limb here and predict, based on his testimony, that the book stinks.

By contrast, the defense operated like a well-oiled machine. Crash’s questioning followed a fairly lucid line. The expert witnesses had years of experience in the field of podiatric surgery, explained the procedures clearly, and had showered before taking the witness stand. Crash’s lawyering alone ate the plaintiff’s case alive. Then, as the cherry on top, the defense busted out a videotape of D3, taken without her knowledge, which showed her leaving a deposition for the case, lighting a cigarette, and walking her diabetic self without too much problem to the bus stop, where she proceeded to stand with her weight on both feet. Now, I don’t have a problem with smoking, God knows, but when you have diabetes and circulatory problems for which you have not-so-obliquely blamed the defendant, maybe it’s not the best idea to fire up a smoke RIGHT OUTSIDE COUNSEL’S OFFICE and walk WITHOUT A CANE to the bus stop like you don’t have a care in the world, because it’s a fair assumption to make that the defendant is going to have a P.I. watching you. The plaintiff’s attorneys tried to stress on cross-examination how much trouble D3 had actually boarding the bus; the defense witness pointed out, as nicely as he could under the circumstances, that people with weight problems often have problems with steep sets of stairs. The plaintiff’s attorneys: “But she’s fat because she can’t walk!” The defense witnesses: “But she can’t walk because she’s fat!” That pretty much decided it for me right there. The plaintiff may have had a case. The plaintiff may in fact have suffered injury at the hands of Dr. Antman. Her lawyers didn’t prove it, didn’t come close. Antman’s lawyer carved them up like a Ginsu knife.

So we got our charge from IBC, and we went into the jury room to deliberate. I didn’t think we’d spend more than half an hour going through the ballot, but apparently, not everyone shared my assessment that the plaintiff had basically picked a doctor at random and blamed that doctor for a thirty-year history of foot problems that probably stemmed from her needing to lose fifty pounds. I mean, I feel for the woman; my feet don’t give me the easiest time in the world, so I can absolutely sympathize. But sometimes bad things happen and it’s not anyone’s fault, and given that between Social Security and her city-college pension, she’ll make more than I do this year, not to mention that her legal team had failed utterly to compile enough evidence to prove her contention — well, I had my mind made up. I’d review the evidence, but I didn’t think I’d find any that supported her claim.

And I didn’t, but it couldn’t be that easy, oh no. We didn’t even take a preliminary ballot before the hissing and spitting started. Your Friend’s Incredibly Cool Mom elected herself as the resident expert on x-rays. And on legal procedure, because she works as a paralegal when she’s not busy getting back together with her ex, Bob Dylan, over the weekend. (No, that’s not a joke.) And on the judge’s instructions. I liked her and everything, but I could have done without the lecture on bone structure; we’d all heard the same testimony, and her back problems didn’t qualify. She and Christine Dior insisted that Antman had fucked up; the rest of us contended that maybe he had, but the plaintiff hadn’t proved that to anyone’s satisfaction, and that’s hard cheese on the plaintiff if Antman really did fuck up, but could we please vote according to the instructions we received? Christine Dior announced that she wouldn’t “be rushed.” Brendan Sexton IV and I exchanged a look. Arguments broke out. People shouted. People shouted that we needed to stop shouting. After an “oh, come on, Sarah” that rubbed me the wrong way, I slapped the entire plaintiff’s file down on the table and told someone, anyone, to find me facts in evidence that proved Antman had performed the surgery outside the bounds of reasonable care. “Facts IN EVIDENCE. Not ‘what you know.’ FACTS. In. EV-I-DENCE.” That went over like a ton of bricks, and I shouldn’t have thrown tone around, but really, I’d had it. “The case is a dog. Maybe it’s her lawyers’ fault, maybe she’s got nothing wrong with her, maybe Antman’s Dr. Mengele, doesn’t matter — there’s nothing here. We can’t find for her. She hasn’t met her burden.” Brendan hauled out a whiteboard drawing of the bones of the foot and reminded everyone yet again that most of D3’s current problems stemmed from a genetic deformity on a part of the foot which Antman hadn’t touched. That finally did it. YFICM and Christine had to concede that, while they really felt that Antman had done something wrong, they couldn’t prove that from facts in evidence. We voted again. All the ballot entries, except a relatively innocuous one about x-rays, went to the defendant — including one that read like a complete syllogism, which we’d told the judge we didn’t understand and which he crabbed at us to vote on anyway even though it didn’t make a shred of sense. We handed the finished ballot to Danny Boy II. Christine and YFICM complained that it made them sick to have to come in with this verdict. Curly Sue looked at the table. Wide-Eyed Wonderer, Brendan, and I sighed and tried not to roll our eyes.

Back into the courtroom we went. Herb glanced over the verdict sheet, handed it to IBC, and asked Wide-Eyed Wonderer to stand and answer the ballot entries in order, which she did, nervously. Nobody in the courtroom seemed surprised by what they heard. The judge told us, without exactly telling us in so many words, that he knew we’d had a hard time with the case as submitted but that we’d done the right thing. He dismissed us. We’d all sort of gotten friendly prior to the deliberations, but afterwards, we just wanted to leave and not look at each other; we grabbed our things and dispersed without fanfare. Brendan and I bitched about the whole thing from soup to nuts all the way to the 6 train.

But we did turn in the correct verdict in the end. Civil cases call for a preponderance of evidence in favor of the plaintiff, and we didn’t see anything like a preponderance. The case started its long journey in 1996, and it’s my sense that D3 talked herself into believing that Dr. Antman wronged her. We heard a very very very sad story on direct about how, the night after the surgery, she suffered such excruciating pain in her toes that she couldn’t walk; when she had to pee in the middle of the night, she had to crawl to the toilet…and she didn’t get there in time. Okay, that sucks, no doubt. But then we heard that she called Antman’s office about the pain the next day — a Saturday — and Antman told her to come in on Monday. “FORTY-EIGHT HOURS LATER!” Super George bellowed. All right…but what did she expect surgery to feel like afterwards, exactly? Drinking an ice-cream soda? Surgery hurts. She’s an adult; she’d had surgery on her feet before. And as far as the Monday appointment goes, that’s standard procedure in the HMO era, unfortunately. I understand that pain is scary and uncomfortable, and perhaps Antman should have told her to go to the emergency room — but if he didn’t, her attorneys should have introduced that as evidence. They didn’t. And she should have gone to the ER under her own steam if she’d had pain that bad. She didn’t. She did, however, keep visiting Dr. Antman for a few months. If he’d really wrecked her feet, why did she continue under his care? She’s had, literally, dozens of podiatrists in the last twenty years. It’s not like she felt shy about changing doctors when she needed to. She didn’t change doctors.

And why couldn’t any of them except her current doctor, Dr. Chao — a doctor whom she doesn’t even see about her feet in the second place, but for “pain management” generally — testify that her condition had worsened since 1993? D3 also claimed that the pain in her feet makes her walk strangely, which causes ankle problems, which then lead to knee problems, which in turn make her back and neck hurt, and she pointed up that fact by wearing a cervical collar to court. A CERVICAL COLLAR, people. What a cliché. I seriously expected Super George to introduce himself as Lionel Hutz after that stunt. But I don’t doubt that she’s got musculo-skeletal problems; it’s just puzzling to me that her myriad doctors since that time wouldn’t agree to say under oath that the 1993 surgery caused those problems, especially since Dr. Chao admitted under oath that her arthritis is cumulative and probably had nothing to do with the surgery. I mean, one rehabilitation clinic’s records as much as said that they suspected her of faking, and the defense didn’t miss the chance to mention that — what happened? Maybe her lawyers couldn’t get any appropriate doctors on the stand due to yet another crippling bout of ineffectiveness. But maybe the doctors in question just didn’t think she had a case. Maybe they didn’t feel comfortable testifying to something that they didn’t believe. The defense threw a couple of her doctors up there under subpoena to say she didn’t have grounds for a suit. What went wrong?

If it sounds confusing, well…exactly. Now you know how we felt. It’s a tough one to call. As soon as I saw the video, I suspected malingering, but I tried to focus on all the evidence we’d heard, and I sympathize with D3, but we had no choice. We had to find for the defendant, and the “why” of it doesn’t matter. Whether the lawyers bungled the case or whether she’s just full of it, the evidence didn’t prove her case. It’s surprising, though, that when it comes down to brass tacks, people will ignore the instructions of the judge and just go with their gut feelings. If I’d seen proof that Antman disabled her, I would have found in D3’s favor, but IBC told us only to consider testimony and exhibits in evidence, and that’s what I did; sometimes, people go on disability for the purpose of making a malpractice case stronger a priori, but I couldn’t consider that. Other people, on both sides of the issue, seemed to have trouble distinguishing between what they believed or extrapolated and what’s actually under consideration, and I don’t say that to toot my own horn or anything. It’s tough to put aside. I don’t know if I succeeded entirely myself. But it’s depressing, to me, that in what’s allegedly “the best system in the world,” many people don’t hear what they should in the jury charge because they don’t want to hear it — and we had a smart, well-educated, reasonable bunch in that room, too. So maybe it’s the best system in the world, but it’s far from perfect.

And now, just to give you an idea of what we had to deal with, a sampling from my actual notes during the course of the trial.

“Why doesn’t The Walrus ask these questions IN ORDER?”

“Why doesn’t D3 remember/know more details? Shouldn’t she be firmer on this stuff? Didn’t they prep her? Didn’t this happen — TO HER?”

“Why doesn’t he ask in re: effectiveness, exact nature of pain, requests made of Antman, Antman’s responses, et cetera?”

“Welcome to the Asked And Answered Olympics. Defending gold medallist The Walrus.”

“Come on. Mention the salary. Come on. Wait — that’s it? That’s the direct? All of it?”

“Now we’re talking about the pinky toe again? Is that allowed on cross when direct didn’t cover that? Why isn’t the plaintiff objecting to this — it’s irrelevant, and grandstanding as well.”

“Get to the point, Captain Grecian Formula.”

“Dr. Eugene Bucchioni, who is about ten minutes shy of turning into fossil fuel.”

“Objection — confusing. I don’t have any idea what we’re comparing here. Could someone maybe ask a question that had a point? Any point?”

“Dr. Lazar has never testified in a court of law before…which means we’re in trouble. And Crash is having hair issues this morning. What did he style that with, a hammer?”

“Oh hi, Super George. Let the objecting begin.”

“Does the damn file contain the damn x-rays or not?”

“Feet: they make great paperweights! Now in glow-in-the-dark!” (Dr. Lazar used a plastic model of the foot to weigh down D3’s chart during his testimony.)

“It’s not relevant. Drop it. ‘Doing further harm’ — TO WHAT? DROP. IT.”

“Trying to make Lazar look unprepared — yeah, Lazar did a fine job of that on his own. Can we get back to the standard of care, please?”

“Oh no, where’s Super George? Which means we’re stuck with The Walrus…and after a mere six questions, he’s all over the lot already…yep, only nine minutes in and IBC is already bitching at him. Loooong day ahead.”

“Yes, I think we get it. She was always ‘on the go’ before. Now she’s not. MOVE ON.”

“The plaintiff…rests? Will wonders never cease?”

“Hey, this guy looks like Derek Jeter. Cute for a podiatrist. I think I might have a pain in my foot, suddenly.”

“All hail the return of Super George.”

“Shut up, Super George.”

“Dr. Edwin Wolf, licensed in three states, and that is QUITE a mustache.”

“If D3 doesn’t stop with the moaning…shut up already, WE GET IT.”

“Dear Super George: There is a picture of you in the dictionary next to the word ‘flailing.’ Signed, What’s Left Of Your ‘Career.'”

“Forty-five seconds, and Super George has already gotten swatted by IBC, which is possibly a record — and his tie is horrible, might I add, as is today’s blow-dry. No wonder he was late the other day. Fashion court.”

“John Lazar on rebuttal. Dr. Lazar, if you know you’re testifying today, you might try a little product I like to call ‘Head & Shoulders.'”

“‘Madame Forewoman, have you reached REM sleep?’ Heh.”

“And it’s Dr. L with the quote of the week: ‘May I have the foot?’ Yes, you may. BEND OVER. And SHUT UP.”

“Ladies and gentlemen, welcome to the matinee of Showboat, starring Crash Davisberg as…the boat? Kill me.”

“This is agony. Don’t be a hero, Lazar!”

“Okay, seriously — where is Antman? Where did Crash get these blocking moves? Why is Lazar taking another beating? It’s like kicking a puppy. A really greasy puppy.”

“‘It’s always hard for a lawyer to stop talking.’ Oh, oh, really? Why don’t you pull up a chair and TELL US ABOUT IT, Super George? And why don’t you quit now before we all drift into a coma?”

“Do we applaud now?”

“Can you get more inept than this and still be an attorney? And what’s with the pink shirt? ‘I read in a book that pink makes juries blah blah blah’ SHUT UP SUPER GEORGE!”

“Oh, please. It’s ‘first do no harm,’ not ‘first hold your hand.'”

“Is that a toupee?”

“Super George gets $5 for using the word ‘poppycock.’ Except that he just said…wait, what? Jesus, it’s like Memento with this guy.”

“Super George: ‘The most incompetence you can imagine. [Beat.] In a physician.’ Oh man, that’s priceless. Thanks for the qualifier, SG.”

“Dude, just because the condition got worse…so what? You haven’t linked them! Why don’t you just say she got hit by lightning and sue the weather while you’re up? And WHAT is WITH the SPITTLE? WIPE IT.” (An unsightly spittle crust formed in the corner of Super George’s mouth during his closing, to the point where EVERYONE in the front row of the jury box started wiping their own mouths and hoping he’d pick up the signal. He didn’t, and I for one couldn’t look directly at him anymore because the spittle grossed me out too much.)

“That’s funny, I don’t see any violins in the courtroom…for God’s sake, wrap. It. Up.”

“Super G: ‘How can you measure her pain in dollars?’ Well, zero is pretty easy to multiply, if you know what I mean, which you probably don’t.”

If I had that much time to scribble snide comments…it’s not a good sign, let’s put it that way. But I don’t have to serve again for four years, which I think is a good thing for everyone involved in our great system, and I think that in spite of my whining and huffing, I did the right thing by this case — or as “right” as I could under the circumstances. That’s the best I can do; that’s the best we can hope for, I guess.

Next week, we return you to your regularly scheduled kvetching already in progress.

January 21, 2002

Share!