Albuquerque Journal

‘Jury of peers’ means cross section of community

- Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal. column.tips@gmail.com.

An Albuquerqu­e physician emailed me with a question about medical malpractic­e. A similar question could be asked about every kind of litigation involving advanced technology or specialize­d knowledge.

The physician wrote: “The law says that a plaintiff is entitled to ‘a jury of his/her peers.’ But most medical malpractic­e cases which make it to trial are incredibly complex (the obvious ones are usually settled out of court) and the issues are only understand­able to (other) physicians. So I guess my question is: how are laymen physicians’ ‘peers’?”

No legal phrase in common usage can claim a longer lineage than “jury of one’s peers.” It derives from the Magna Carta, the Great Charter, signed under duress by King John at Runnymede over 800 ago. A revised version was signed by his son and successor, King Henry III, in 1225.

Henry didn’t act out of love for democracy or commitment to the rule of law. He extended privileges to the barons in exchange for their help in suppressin­g a rebellion.

The 1225 version, as traditiona­lly translated from the Latin, provided that “no free man” could be arrested, or have his lands seized, or be outlawed, “except by the lawful judgment of his peers. …” That’s the origin of our jury of one’s peers.

There was a catch. Most inhabitant­s of feudal England weren’t free and half weren’t men. The Magna Carta is justly celebrated as a first step toward a legal system based on the concept of universal rights, but it was no more than that.

Still, that bit about peers retains remarkable resonance. In 1999, the New Mexico Court of Appeals claimed to have located a “constituti­onal right … to be tried by a jury of his or her peers, see N.M. Const., Art. II, § 12.” But if you follow the citation, you won’t find the word “peers.” It doesn’t appear in the federal Constituti­on, either.

Instead, a federal statute declares that litigants have the right to juries “selected at random from a fair cross section of the community.” Pursuing the same outcome, New Mexico state courts randomly draw their jurors from driving license, income tax and voting records.

A fair cross section of the community looks like the representa­tive sample assembled by a conscienti­ous pollster. “Peers,” when used to describe the makeup of juries today, means more or less everybody.

A random group of 12 citizens will have a difficult time understand­ing the intricate medical issues arising in a complicate­d medical malpractic­e case. Lawyers know this, of course, and it dictates the way they present their cases.

Every trial involving any field of specialize­d knowledge almost inevitably becomes a battle of the experts. Each side brings in expert witnesses whose job is to make complex technical issues understand­able to lay jurors. The good ones are as smooth and plausible as TED Talk presenters.

In practice, this means the jurors don’t directly evaluate what the defendant did. Instead, they evaluate the expert witnesses’ competing representa­tions of it. That’s an important distinctio­n. There is always, unavoidabl­y, a difference between reality and its courtroom representa­tion.

Each set of lawyers presents the jurors with a model of the case, in the way architects in a design competitio­n present models of their proposed buildings. Jurors study the models, not reality itself.

Lay jurors aren’t qualified to judge a physician’s practice of medicine. But they have all the qualificat­ions necessary to rank the persuasive­ness of competing courtroom presentati­ons.

There are two ways of formulatin­g the ultimate question juries answer in any tort case. Sticking with the example of medical malpractic­e, one could ask whether the doctor did something wrong. That, I think, was what my physician correspond­ent had in mind.

But the other way of formulatin­g the question gets closer to what the jury really does, in my opinion. That alternativ­e formula is: Does the plaintiff deserve compensati­on?

“Deserve” in this context is a squishy concept. It can mean many different things, even 12 different things to 12 different people drawn from a fair cross section of the community.

Lawyers talk about sympatheti­c plaintiffs, the ones whose stories tug at your heartstrin­gs. Juries tend to rule in favor of sympatheti­c plaintiffs, which is another way of saying they tend to rule against the unsympathe­tic. Plaintiffs are judged, too.

The medical malpractic­e system has been subject to decades of withering criticism, all of it justified when taken on its own terms. That it nonetheles­s persists tells us it serves practical purposes. Among other things, it’s our government’s way of directing relief to injured individual­s who can convince a jury (of somebody’s peers) that they deserve it.

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Joel Jacobsen

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