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Brett Emison
Brett Emison
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How Juries Work: One Family's Story


I often get asked how our jury system works. The U.S. Constitution and State Constitutions grant you the right to a trial by jury.

Article III, Section 2: Trial by Jury, Original Jurisdiction, Jury Trials

7th Amendment: Trial by Jury in Civil Cases

In Suits at common law. . ., the right of trial by jury shall be preserved. . . .

This right to trial by a jury of our peers is the great equalizer that permits our Constitution to work. Whether you a celebrity, a multi-billion dollar corporation, John Q. Public or even the government itself, the guaranteed right to trial by jury puts you on equal footing in the eyes of the law.

Here is one story that gives a juror’s perspective, as well as that of the injured person. Hopefully, it sheds light on how our system works.

How Juries Work: The Courtney Hill Story from American Association for Justice on Vimeo.

[Editorial note: I am an attorney. I do represent injured people. However, I do not practice medical malpractice litigation.]

According to Scientific American, preventable medical mistakes kill 200,000 American each year. Despite all those deaths, there are those in society who want you to give up your Constitutional right to a jury trial if one of these accidents happens to you or your family member.

Why would anyone give up his or her constitutional right to a trial by a jury of peers?

Why would we give up a fundamental constitutional right in order to protect negligence that kills 200,000 people per year? Do insurance lobbyists have us so scared that we would give up a fundamental right deemed so important that it was included in the original Bill of Rights?

What are we really scared of? Some facts from allbusiness.com:

  • Average liability premiums across internists, general surgeons and OB/GYNs are nearly identical for states with or without caps on medical malpractice damages

  • Average liability premiums for OB/GYNs are nearly identical for states with or without caps

  • Average liability premiums for general surgeons are nearly 10% higher in states with caps

  • Average liability premiums for internal medicine are nearly 10% higher in states with caps

"Malpractice insurers promised tort law changes would lower premiums, yet it has not happened."

If caps on damages and keeping valid lawsuits out of court do not reduce malpractice rates for doctors or the premiums that you and I pay for health insurance, what does it do? According to the Columbia Tribune and Kansas City Business Journal, it lines the pockets of insurance companies.

Family health care premiums for employer-provided insurance in Missouri will have risen an estimated 3.6 times faster than workers’ earning from 2000 through 2009, according to a Families USA report.

Family health insurance premiums for employer-provided coverage will have risen 82.5 percent in the period, whereas median earnings have risen 22.8 percent. . . .


Families USA said that higher insurance premiums have been coupled with "thinner" coverage and higher deductibles, copayments and co-insurance.

Pollack blamed rising premiums on "wasteful heath care spending, an almost-unregulated insurance market, a dramatic drop in competition in the insurance market and costs shifted from the uninsured to the insured, termed a ‘hidden health tax.’"

In Missouri, those with employer-provided health care are paying more money for less coverage. . . even though Missouri passed dramatic tort reforms in 2005. According to the Columbia Tribune, after the tort reform passed, medical malpractice insurance companies increased their profits of couple percent to nearly a 25 percent return on investment.

While the insurance companies make money, malpractice victims are effectively denied their Constitutional right to be heard in court.

"Effectively, the courthouse door has been slammed in their face by the non-economic cap put on in Missouri," [said a Missouri attorney] who represents plaintiffs in medical malpractice litigation. "What was pushed as stopping the windfall for the plaintiffs has turned into a windfall for the insurance companies."


With the cap in place on economic damages, little can be recovered when the plaintiffs are children, nonworking mothers, the retired and the disabled because there are no wages or long-term earnings involved in the computation of what can be recovered.

In Missouri, tort reform supporters have placed almost no value on the life of children, stay-at-home moms, the elderly and the disabled. Isn’t the life of a stay-at-home mom worth as much (if not more) as some corporate executive? In a Missouri medical case, it is not. How have we come to sacrifice the Constitutional rights of mothers, children, the disabled and the elderly.

Unfortunately for one insurance lobbyist, he learned his lesson too little too late. Frank Cornelius wrote a piece entitled, Crushed By My Own Reform, which was published in several major newspapers including the New York Times and the Dallas Morning News. My citation below comes from the Dallas Morning News, October 10, 1994, Monday, HOME FINAL EDITION, at p. 13A.

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering.

I argued successfully that such limits would reduce health-care costs and encourage physicians to stay in Indiana _ the same sort of arguments that now underpin the medical industry’s call for national malpractice reform.

Today, from my wheelchair, I rue that accomplishment.


The cost of this cascading series of medical debacles is painful to tally:

  • I am confined to a wheelchair and need a respirator to keep breathing. I have not been able to work.
  • I have continuous physical pain in my legs and feet, prompting my doctor to hook me up to an apparatus that drips morphine. My pain used to rate a 10 on a scale of 1 to 10. Now it’s about a 4.
  • Twice, I have received last rites from my church.
  • My marriage is ending, and the emotional fallout on our five children has been difficult to witness, to say the least.
  • At the age of 49, I am told that I have less than two years to live.

My medical expenses and lost wages, projected to retirement age if I should live that long, come to more than $ 5 million. Claims against the hospital and physical therapist have been settled for a total of $500,000 — the limit on damages for a single incident of malpractice.


The kicker, of course, is that I fought to enact the very law that limits my compensation. All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn’t.

Indiana’s health care costs increased 139.4 percent from 1980 to 1990 — just about the national average. The state ranked 32nd in per-capita health care spending in 1990 — the same as in 1980.

It’s understandable that the damage cap has done nothing to curb health-care spending; the two have almost nothing to do with each other.


The prospect that these "reforms" will be enacted is frightening. Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff.

They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.

Medical negligence cannot be reduced simply by restricting consumers’ legal rights. That will happen only when the medical industry begins to effectively police its own.

I don’t expect to live to see that day.

We should not make the mistake that Frank Cornelius made. We should not give up our constitutional rights to protect ourselves from some imaginary bogeyman. Stand up for your rights. Protect yourself and your family.


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  1. Jim O'Hare AIC AIS VP med mal claims says:
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    Good article. The issue is deep and thick. Caps are one thing, policy limits are the other, that account for the premiums charged.

    ISMIE the Illinois company has given back $54 million of collected premium back to it’s insureds since tort reform. $17 mill this year.

    The effect: The number of docs leaving the state, is no longer a problem. The insurance market is soft and affordable to docs, there is alot of competition driving down premium. More docs, more specialties, more coverage to compensate plaintiffs. etc

    RE Indiana caps -http://www.mcandl.com/indiana.html#XII- They actually went up from 100k.

    Caps should be reserved only for the pain and suffering cause of action. It is invisible and subjective. Can the pain from a broken finger be worth a million dollars? Whatever your answer, how did you come to the conclusion? Was it a subjective feeling from the gut? Did you use a ruler or scale? Would a broken toe be worth as much? How can this be measured collectively by a jury? Do you average the 6 gut feelings or add them together? The cap for P&S is gut feeling protection. No other cause of action is subjective.

    A verdict is really meaningless. It is what can be collected from a professional liability policy. Obtaining a $10 mil verdict is meaningless if there is only a $250k policy and protected assets. Premiums are related to specialty and limits, not caps.

    One last thing- jury of peers , Who was that meant for? The plaintiff or defendant? Is that basic tenet honored or avoided at all costs? I believe that access to a jury is a plaintiff right and a jury of peers is for the defendant.

    By the way , What if the finger belonged to Mozart or Clapton?

    regards Jim
    vp med mal claims Physicians Ins Co Fl

  2. Brett Emison says:
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    Thank you for reading and your thoughtful comments. It is encouraging to see someone in the insurance field acknowledge that there are many factors that affect the premiums charged for insurance, including — as you mentioned — the policy limit and the competitive market for insurance.

    With respect, I must disagree with you regarding damage caps for pain and suffering. In our civil justice system, the jury is charged with making difficult choices and difficult calculations, but calculations nontheless. The jury’s calculation of pain and suffering damages is far more than a simple “gut reaction” and to call it such unduly diminishes the role of the jury.

    Many times jurors (and many other areas of society) are called to put a tangible value on an intangible item. Pain and suffering damages are only one example. In insurance, you must put a tangible value on the subjective and intangible risk that a doctor will commit malpractice. What I may call a “gut feeling”, you would tell me is based on a number of calculations. The same goes for business valuations. How does one really value the “good will” or “blue sky” value of a company other than “gut feeling”, but many economists and financial advisors will tell you they can “calculate” such values. In pop culture, everything from music to movies to television is given a rating and a value based solely on the public’s “like” or “dislike”.

    In civil trial, the jury hears and then weighs (“calculates”) all of the evidence. In your finger example, there are many factors that may go into the calculation. Perhaps the evidence presented showed the plaintiff really did not experience much pain and suffering from the loss of her finger… she can do all that she did before. In such a case the jury’s calculation would be relatively low. However, suppose all of evidence shows that the Plaintiff was a gifted painter or musician and relied on her finger not for income, but for enjoyment of her life. Why should arbitrary damage caps — for that is all they are… arbitrary — rob such a person of her constitutionally protected right to recover for her damages?

    Far more often than not, the jury after hearing all of the evidence, gets it right. We should not be so willing to give up our rights in order to protect insurance companies from an occasional outlier result.

    One needs only ask the question, how much would someone have to pay you to cut off your finger? What about to cut off your leg? What about to paralyze you? What about to lose a child?

    Would you rather have your constitutional right to prove up your loss to an impartial jury of your peers who would weight all of the evidence in your case or would you rather have some congressman decide how much money you would take for you (after a dinner or vacation paid by some lobbyist)?

    Finally, with respect to your question of “who’s peers”, the jury is meant to be the peers of both the plaintiff and defendant. It is true, that most people are more familiar with a criminal case in which the defendant is entitled to a jury of his peers, but it applies in civil cases as well.

    What a “jury of peers” really means is a jury of impartial community members. The key is impartiality. In my practice, I do not want a stacked jury… only a fair jury. During the jury selection, both the plaintiff and the defendant are able to ask questions of the jury and to make strikes for those jurors each side believes would not make a good juror for that particular case. That is not to say the juror is a bad person or an unfair person, it simply means the juror may not be right for that particular case.

    I have a friend who really does not like broccoli. Given his dislike of broccoli it would probably not be a good idea for him to judge a casserole contest in which a broccoli casserole was entered. It is not that he is a bad person or is an unfair person, but based upon his life experiences, he simply doesn’t like broccoli. Maybe he wouldn’t be a good “juror” in a casserole contest, but would make an excellent juror in a pastry constest.

    The goal in our system is to provide a fair and impartial jury for both sides.

    Thanks again for taking the time to read and for your thoughtful comments.

  3. Jim O'Hare AIC AIS VP med mal claims says:
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    Thanks Brett- I enjoy debate as sport. A few things. Today , I have 25 years of med mal claims adjusting. Enjoyed every minute, more or less.

    My guess is that you have a Blacks law dictionary in your office. Their definition of peer does not state ‘impartial community member’, Does it? Does any dictionary? Please advise.

    PEER: – Those that are equals in society, rank and station. Your definition is what you think the definition should be. I don’t need 6 docs on the jury, but how about, 6 college degrees.

    Trial by a jury of ‘peers’ has nothing to do with the plaintiff. If you had to choose between the pauper and King, who gets benefit of the peer rule? If you said pauper, the correct answer in my view is that the defendant has the right to be judged by his peers, whether king or pauper. Anybody?

    If you had an orthopedic leg off case, would you select a Harvard trained orthopedic Doc with one leg to sit on the jury?

    RE calculations, that implies math. There is no math nor calculations when you just pull numbers out of the air. It is not repeatable. A jury will, without doubt come up with 6 different ” calculations”. If your client loses 10 years of earning capacity at $50/yr. The chances that each juror coming up with $500k LOE is true and repeatable. You could actually tell the juror that came up with 5 million as his answer that he is wrong. Maybe you wouldnt, but I would!!. You may tell the other 5 jurors that they are wrong.

    There is nothing intangible about underwriting and rating a physician and charge him to reflect the expected number of claims historically produced by that specialty, the expected indemnity, costs of defense and hopefully, have a few bucks left over to pay my salary and a company profit. We can actually whittle down our risks via personality profiling to separate the administrators from the entrepenurial persona. No business has ever survived on guesswork.

    Insurance is the height of Math. We have actuaries. Have you ever talked to one of those? Probably not unless you have a spaceship!They’ll tell you what a dollar costs, its value and price. Schizophrenic accountants that place numbers in alphabetical order. Believe me – zero guesswork. It is all math divided by arithmatic.

    Honestly- Do you really want a jury that is impartial? I don’t. Don’t you try to guess which jurors may have a proclivity to be partial to your case? Wouldn’t you want your clients family as jurors? What better set of peers are there? It is not about justice it is about money. Money can be counted, justice and pain cant.

    Fair and impartial is a polite goal but has nothing to do with peers. Fair and impartial peers should be the standard and docs never ever get them.

    Can you honestly argue that 5 orthopedic doctors on a jury would not meet the perfect definition
    of peer group. But they couldn’t possibly be fair and impartial could they? What if your client is an orthopedic surgeon? The real question has been dissected. How about 6 med mal attorneys? Wouldn’t your first voir dire question be- ” Do you practice for plaintiffs or defense?. Would you only consider them peers if they were plaintiff attorneys? A juror that flips burgers for a living has no business deciding whether that choleducojejunostomy was completed within the standards of care. Not a peer

    Your examples of other subjective values of shows and good will are all measurable via appraisal by professionals, people in the know- peers.

    Thanks for the discourse
    regards Jim

  4. Brett Emison says:
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    Thanks again for your comments. I really do not believe we are that far apart in our views, but let me take a moment to respond.

    I do have a copy of Black’s Law Dictionary in my office, which defines “Peers” with respect to juries as follows: “thus ‘trial by a jury of his peers’ means trial by jury of citizens.” Deluxe Black’s Law Dictionary, Sixth Edition.

    However, in the law, Black’s Law Dictionary is not a very “citable” source in the law. I practice law across the country, but for the purposes of this conversation, I will focus on the law in the state in which I live. The Supreme Court opinions where I live say the following about juries:

    The cornerstone of our judicial system lies upon the constitutional right to a fair and impartial jury, composed of twelve qualified jurors. Williams v. Barnes Hosp., 736 S.W.2d 33,36 (Mo. banc 1987). “The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the Constitution.” Kendall v. Prudential Ins. Co., 327 S.W.2d 174, 177 (Mo. banc 1959). “The constitutional right of every citizen to a trial by jury to be meaningful contemplates a fair and impartial jury. The jury should consist of twelve impartial, qualified jurors.” Beggs v. Universal C.I.T. Credit Corp., 387 S.W.2d 499, 503 (Mo. banc 1965).

    The purpose of jury selection (or “voir dire”) is to ferret out any bias or prejudice on the part of potential jurors. State v. Ball, 622 S.W.2d 285, 287 (Mo. App. 1981). When the system works — which it does most of the time — both sides (plaintiff and defendant) are permitted to identify potentially biased and prejudiced jurors and remove them from the panel to ensure a fair and impartial panel of jurors. This is what I want. I am confident enough in the cases I take to trial that I do not need to stack the deck. All I ask for is a fair fight.

    You offer the example of having six orthopedic surgeons or six plaintiff attorneys on a jury in a medical malpractice case. I take you back to my original analogy of the casserole contest. While these may be upstanding, fair-minded individuals, a medical malpractice case would probably not be the best “casserole contest” for either group to judge. As you note, both groups would bring with them certain preconceived notions that would prohibit them from judging the case solely on the merits of the evidence. There are certain life experiences and long held beliefs that simply cannot be “checked at the door.” One side or the other would be starting out behind — that is the scales of justice would not be equal — as the case began. One side or the other would be forced to overcome the preconceived biases and lifelong beliefs of one side or the other. The jury must not have its thumb on the scale as the case begins.

    With respect to “intangible damages”, we may simply have to agree to disagree. You contend that “intangible damages” such as pain and suffering are merely a “gut call” devoid of calculation. Having represented hundreds of clients with such damages, I can assure you they are not. These damages are real. Calculations of such damages may at times be difficult (but they are calculations nonetheless) and many times are not difficult at all.

    As I said before, simply ask yourself how much it would cost to have you cut off your own finger… or your own leg… or to snap your own spine. I’m sure you would begin doing all sorts of calculations that are not simply “gut feelings”. How bad will it hurt? What things could I not do that I did before? How would my life be altered? How would my relationship with my family be changed?

    You might very well determine that there is simply not enough money to adequately compensate you for such losses. But does that make the losses “less valuable” or “more valuable”? Should you not be compensated for your losses simply because the value of your loss is incredibly high? That doesn’t make much sense, does it?

    Again, put yourself in the shoes of an injured victim. Would you prefer to have a legislature arbitrarily determine the value of your losses or would you prefer to retain your constitutional right to present evidence (calculation) of your losses to an impartial jury of citizens?

    I know my answer.

  5. Jim O'Hare AIC AIS VP med mal claims says:
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    Brett I applaud your energy. We are both trying to convert heathens, but let us be fair. You imply that med mal cases are about justice, and that you would reject a jury stacked in your favor to certify a fair fight. Very altruistic.

    Isn’t it entirely about the money. No money , no justice. You win your case and are awarded a dollar. Must be justice. I don’t think so

    If you demanded a fair pre-verdict, post summation settlement for $250k and the jury awarded $1 million, would you return the $750k? Of course not. It would have been justice if you rec’d the $250k that you asked for. That other $750k is what? More justice than you asked for. A higher degree of justice.

    It is about money for your client, for you and not the fair fight search for justice. Civil cases are about money. A high stakes poker game.
    Don’t you measure the justice by what you do or don’t get for your client? In 25 years I have never received a demand for justice.

    You only partially quoted Blacks. The PP reads
    Equals: those who are a mans equals in rank and station; thus ” trial by a jury of his peers” means trial by a jury of citizens. You need to be a citizen first and then you need to be a peer. I do not think that interpretation is needed.

    I am not using Blacks as a citable source of law. I have no plans to litigate the definition. Use any dictionary of your choice.

    Are you saying that the generally accepted definition of peer is anybody that walks upright? A peer is just anybody? The only qualification to be a juror in Florida is a drivers license and therefore we are all peers.
    Do you agree? I am not sure that all drivers have 15 years of post high school training. A 4th grade education gets you a license.

    I am good with the unbiased ,fair, impartial, even handed, neutral aspect of a jury. One of your cites mentions qualified. Being a peer is a good step toward qualified.

    RE What body parts are worth? This supports my view. My leg is worth more than yours and yours is worth more than mine. We can agree that it is a lot. Ask six jurors and you’ll get 6 different numbers, all starting with a gazillion. To me, calculating = calculator or calculus. implies math, the universal truth. Pain and suffering is a feeling entirely subjective. Money is objective, value is subjective and is not a measurement.

    The legislature is not arbitrarily determining the value of my loss. They are just placing an upper limit on pain . To you, that limit appears to be the starting point.

    You pick an upper limit that isn’t infinity. I am ok with that discussion. Is a million good? Can we agree that insurance involves extensive math graphs and calculations? Can we also agree that when you interject “infinity” into any equation, that equation becomes useless?

    regards Jim

  6. Brett Emison says:
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    I have long since given up “trying to convert heathens” and I always endeavor to “be fair.” I am not a medical malpractice lawyer. I have never tried a medical malpractice case. I do not intend to try a medical malpractice case.

    As a zealous advocate for my client, I would never reject a jury “stacked in my favor.” In my experience, that is not a problem with which I have ever — or will likely ever — been confronted with. Defense lawyers are also zealous advocates for their clients would never permit a jury to be stacked in my favor.

    This is how the process is designed to work and why it is the very best legal process ever conceived. Both sides are given equal opportunity to select the jury and to arrive at a jury of fair and impartial jurors so that each party may stand as an equal with the other.

    You keep coming back to money. Unfortunately, money is how victims receive justice under civil law. A tort victim is not allowed to jail the person who injured him or her. Our founding fathers determined that civil damage awards must be reduced to a dollar amount.

    However, it is not always about the money. My law firm represented a young woman who paralyzed by a defective Ford van in Florida. After trial, the jury awarded our client $16.94 million. Our client offered to give back half of the jury’s verdict if Ford would only include a sticker warning passengers not to recline in their seats while driving so that others would not be injured like our client. Ford refused to do so. (You can confirm my account at this news story: http://www.news4jax.com/news/5357391/detail.html)

    I have enjoyed our debate, but it appears the argument is becoming circular. Perhaps we’ll have to agree to disagree.