Book by Bill Dwyer

[Judge Thomas]

Let me commend to you who are doubters (and I respect your opinion) of
the jury system a book written by Bill Dwyer entitled In the Hands of
People: The Trial Jury’s Origins, Triumphs, Troubles and Future in
American Democracy. The book is only 200 pages long and does not read
like a non-fiction book. Bill was a federal trial judge and is very
eloquent in his description of trial by jury and not only acknowledges
defects but suggests remedies. Best regards.

Neil Thomas

[John Schedler]

I should have thought of his myself.  I knew Judge Dwyer professionally.  I was in cases where he was counsel for other parties & appeared before him a number of times after he went to the bench.  That said, the other side of the arugument is well put in "Trials Without Truth" by Wm Prizzi:

   "... he shows how our preoccupation with formal rights and procedural regularity blinds us to glaring substantive failures,

   such as defendants' lack of access to adequate representation and the fact that there is a strong institutional preference 

   for guilty pleas even in cases in which defendants are innocent. ... "

Both at Amazon, cheap.

My Dad used to say, and my own 33 years of experience confirms it, "if the truth emerges in a civil jury trial, it was probably an accident."  The fact is, the Type 1 & Type 2 errors in civil jury trials probably are each about 40%.

JWS

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[Judge Thomas]

John,

Thank you for your thoughtful e-mail. Interestingly, Judge Dwyer, in
his book, considers both sides of the issue on whether jury trials
should be modified in some way, including the points which you raise
in the book "Trials Without Truth" which I will enjoy reading. I did
find it interesting that Judge Dwyer found that there were four
factors involved in the criticism of jury trials: judges, lawyers,
legislators and juries. It was easy for him to find fault with the
first three but not with the last. To be sure, he did indicate that
there have been some abherrent jury verdicts, but he did note, aptly,
that the world is not perfect and there are trial judges there to
correct any wayward jury verdict. I would note that over my 14 years
I have taken 177 jury verdicts and only reduced one. In that one
case, the jury predicted a change in the law of the state of Tennessee
by the Tennessee Supreme Court. Thank you for your thoughtful e-
mail. Best regards.

Neil

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[Arnold Cohen]

I certainly don't have the expertise of those of you responding but my
concern as a doctor who has been involved personally in malpractice
cases as well as a witness for both the defense and plaintiff is that
the jury is expected to understand very complex decision making
situations that occur in medicine and they are being asked to choose who
they believe from two "experts" who present the situation differently.
How do we expect people without a high level of knowledge of medicine
(specialty specific) to understand things and know which expert is
really telling the truth?
I think specialty courts are the only way to go.

Arnie

Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands

Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993
coh...@einstein.edu

>>> Judge Thomas <ne...@hamiltontn.gov> 5/5/2011 10:52 AM >>>
John,

Neil

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[John Schedler]

The first thing is to address the central problem which many people just will not admit: hindsight bias.  The plaintiff's understands his and ruthlessly exploits it.  By way of example, the Am Coll Rads notes hat the error rate for interpreting plain films is 30% for bd cert radiologists.  That is also true in veterinary medicine.  But, when the radiologist is sued, the first words by plaintiff's counsel in opening will be what the outcome was.  Even the most rare & subtle complication looks obvious in hindsight.  A jury trial is an exercise in hindsight bias.

JWS

[dpriver]

It is my understanding that the principle behind jury trials is that
one is judged by " a jury of one's peers". Under no conceivable
circumstances can a lay jury be considered to be peers of a physician.
This is not meant as an elitist statement, but simply to point out
that the complexities are far beyond the comprehension of lay people.
By the same standard, I would have no business serving on a jury for a
trial involving engineering or securities fraud. The Magna Carta
notwithstanding, trial by jury sounds good, but really does not result
in truth and justice. That said, I would encourage that all of us read
the two books being mentioned in this thread and submit our "reviews".
Knowing that all of you are fast readers, how about taking the coming
month to do this?
David

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[Mayer, Dan]

Thanks David,

I just want to give you all an example of why a jury of physicians may not be the kind of peers that I would want to judge me.

A friend went to a conference on OB and Medical Malpractice many years ago. Part of the meeting was a mock trial. They selected three juries: One of physicians only, one of attorneys only and one of people who worked in the hotel. The case was then presented and the juries asked to render a verdict. The physicians came in with a plaintiff verdict, the attorneys with a defense verdict and the hotel workers had a hard time deciding but came in with a defense verdict. Why was there such a difference? The physicians were being very hard on the defendant physician, holding him to the standard of near perfection. The attorneys were being very hard on the plaintiff attorney, holding him to the standard of near perfection. The jury had no preconceived ideas of what the physician or attorney ought to be doing, so judged based on what they thought was right.

I think that this exemplifies our jury system very well.

Best wishes,

Dan

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[Arnold Cohen]

My son is a law professor. I have discussed this "peer" issued before. He tells me that "jury by peers" is not in any foundation document that is used by the courts. Is this true?
Arnie
-----Original Message-----
From: dpriver <dpriv...@gmail.com>
To: (FACT), Fellowship for Accurate Courtroom Testimony <fellowship-for-accura...@googlegroups.com>

Sent: 5/5/2011 11:35:47 AM

[John Schedler]

You misapprehend the word "peers."  This is America.  We all stand equal before the law and the healthcare professions are not a separate class of people.  Indeed, your suggestions hearkens back to the Medieval guild system that the Framers sought to prevent.  In America, one's "peers" are the whole of the adult citizenry -- the people.  As in "We the People, ..."

This sense of specialness is hard to resist & one of the cancers the progressive movement has inflicted.  Lawyers are the worst, followed by the press (NYT v Sullivan).  The purpose of the jury is to stand accountable to the people, not your guild.

JWS

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[John Schedler]

Yes and no.  When the Constitution was debated, it was summed by all, Federalists & Anti-Federalists, that he Constitution imported all of the tradition English liberties.  To include a jury of one's "peers."  At he time, there were two classes of people: the aristocracy and the commons.  The Constitution abolished the aristocracy, leaving only the commons.  We are all "commoners" and all each other's peers.  

JWS

[Arnold Cohen]

I would go with docs who are knowledgeable in the field over someone who is just guessing just because they don't know enough. This case would depend on the judge's charge that I would imagine would specifically say we are not looking for perfection, we are looking for what a prudent physician would do in a similar situation. I reject your premise based on the "malpractice meeting" attendees without a judge's instruction
Arnie
-----Original Message-----
From: "Mayer, Dan" <May...@mail.amc.edu>
To: fellowship-for-accura...@googlegroups.com <fellowship-for-accura...@googlegroups.com>

Sent: 5/5/2011 12:39:53 PM
Subject: RE: Book by Bill Dwyer

Thanks David,

I just want to give you all an example of why a jury of physicians may not be the kind of peers that I would want to judge me.

A friend went to a conference on OB and Medical Malpractice many years ago. Part of the meeting was a mock trial. They selected three juries: One of physicians only, one of attorneys only and one of people who worked in the hotel. The case was then presented and the juries asked to render a verdict. The physicians came in with a plaintiff verdict, the attorneys with a defense verdict and the hotel workers had a hard time deciding but came in with a defense verdict. Why was there such a difference? The physicians were being very hard on the defendant physician, holding him to the standard of near perfection. The attorneys were being very hard on the plaintiff attorney, holding him to the standard of near perfection. The jury had no preconceived ideas of what the physician or attorney ought to be doing, so judged based on what they thought was right.

I think that this exemplifies our jury system very well.

Best wishes,

Dan

-----Original Message-----
From: fellowship-for-accura...@googlegroups.com [mailto:fellowship-for-accura...@googlegroups.com] On Behalf Of dpriver
Sent: Thursday, May 05, 2011 11:36 AM

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[Arnold Cohen]

Well. What can I say. Peers who don't understand the complexity of the care rendered is hardly in my definition of "peer" but I guess I wasn't asked to write the constitution.
Arnie
-----Original Message-----
From: John Schedler <jsch...@gmail.com>
To: <fellowship-for-accura...@googlegroups.com>

Sent: 5/5/2011 12:55:39 PM

Subject: Re: Book by Bill Dwyer

You misapprehend the word "peers." This is America. We all stand equal

before the law and the healthcare professions are not a separate class of
people. Indeed, your suggestions hearkens back to the Medieval guild system
that the Framers sought to prevent. In America, one's "peers" are the whole
of the adult citizenry -- the people. As in "We the People, ..."

This sense of specialness is hard to resist & one of the cancers the
progressive movement has inflicted. Lawyers are the worst, followed by the

press (*NYT v Sullivan*). The purpose of the jury is to stand accountable

to the people, not your guild.

JWS

> http://groups.google.com/group/fellowship-for-accurate-courtroom-testimony?hl=en

[lbamdjd]

I think this is a key point, and also instructive. The courses Dan
referred to (from Boston, I believe), in general appeal to trial
lawyers and potential expert witness physicians. I wasn't there, but
I expect this is what happened. Although the lawyers certainly should
understand the definition of standard of care, it sounds as though
they may not have applied it, and instead their competitive nature led
them to judge their peers as not practicing effectively enough (the so
called "counsel of perfection"), thus judging their peers as deficient
and the case not proven. The physician experts and would-be experts
probably did not know and did not learn from the course what is
actually required by the standard of care in a legal setting, and so
applied the standard of care they believe to be the norm, that is what
they might have done themselves on a good day, what the textbooks say
or what their professors taught them, all versions of the same
"counsel of perfection". Thus they judged the physician negligent.
The hotel employees were probably a typical jury pool, ignorant of
extremely complex matters being presented, so they had a hard time but
eventually went with the most persuasive expert(s).

I won't opine on the "jury of peers" controversy, but I will agree
that having a judge around to both instruct a jury on the applicable
law and to overturn a case that is wrongly decided is an invaluable
control in our imperfect system. Louise

> ...
>
> read more »

[John Schedler]

Well said, Louise.  Let the docs be docs, but running a fair trial is something judges are much better at.

Now, as to hindsight bias, ...

JWS

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