For reasons I don't quite understand, they've brought back the game show, The Tell the Truth.  Of the major game shows of that era -- notably I've Got a Secret and What's My Line?, I find it the least interesting, and even sort of annoying.  While I know it's the one that's most-easy for the home audience to play along with, there are two huge problems for me.  The first is that when you have an interesting guest...two-thirds of the time you're not hearing what he or she has to say, and worse, for all you know, what you're hearing about this interesting guest may not even be remotely true, but one of the impostors guessing.  But secondly, what bothers me the most is that, after the real-life, interesting person is identified, and you'd love to hear what this remarkable person has to say, now that we know who it is -- the show uses this post-guessing time to interview the two other people!  When we want to hear from the actual, real person, we instead hear from the two fakes!!  Honestly, I don't care who the two fakes are, I want to hear from the Actual, Real Person.

It's for that reason I don't post many clips from To Tell the Truth.  But once in a while, I come across a guest who's so fascinating to see in person, that it's outdoes any hindrances.  Sometimes, at this point, decades later, we can identify who it is when the game starts and watch while knowing.  But even if we can't, we do find out at the end, and can go back and replay the thing.

This is one of those times.  It comes from the October 10, 1960.

I suspect that most people here have seen the movie, Inherit the Wind, about the famous "Monkey" Trial (or Scopes Trial, as it was also know). That was based on the stage play written by Jerome Lawrence and Robert E. Lee (no, not that one...) -- who oddly enough also wrote another famous play totally different in subject and tone, Auntie Mame (which they later adapted themselves as bookwriters of the musical version, Mame.)  The play, of course, told a fictionalized version of the battle between Clarence Darrow and William Jennings Bryan, over schoolteacher John Scopes, who had taught evolution and Darwin's Origin of the Species which was against the law in Tennessee.

Well...the guest here is -- John Scopes!  Yes, the actual, real.  Even the panelists are impressed.  (As one notes, "It's like having a national monument here.)

The questioning is sort of bizarre.  (The polite term for "bad.")  They spend so much time asking about the casting of Inherit the Wind, rather than the Scopes Trial.  And what he went through.  And the history of the time. Worse, they ask about the casting of the two lawyers...and not who played Scopes himself!  The guy who is right there in front of them they're trying to guess.

Still, it's great fun to see, odd questioning and all.

Fortunately, he's the first guest, so you don't have to scroll through.  And happily, since when I do watch the show I'm not very good at it, I guessed correctly here.  Unfortunately, as always, no, they don't talk to him afterwards.  Just the two fakes.  Sigh...

For the past couple months, I've been noting here that there are two reasons I haven't been overly concerned about Trump pardoning people.  And most prominent of those is because pardons only cover federal crimes, and I was sure that Robert Mueller was coordinating his efforts with state attorney generals, most particularly Eric Schneiderman of New York.  I couldn't imagine that that wasn't the case.

It turns out that indeed that is the case.

There is a big banner story from Politico that broke last evening, with a headline that is simple and direct -- "Mueller teams up with New York attorney general in Manafort probe."

As the story explains, the Special Counsel and New York Attorney General have been working together for weeks, sharing evidence and talking frequently, building a joint case against Manafort on financial crimes, particularly that of money laundering.

To be clear, at the moment this (apparently only covers former Trump campaign manager Paul Manafort, no one else and only New York..  But "at the moment" is the operative term.  After all, at the moment most accounts show that the Special Counsel's office seems to be focusing first on Manafort, as the most vulnerable, hoping to get him to flip and provide evidence against others.  And Manafort's troubles are based in New York.  But once this concept is breached, the door is over for an ongoing exchange of information.  And the procedure is set up for other states to follow.  Not that other states may even be necessary.

The importance of this isn't just that it allows New York (or any other state) to indict Paul Manafort, but almost more to the point, it gives Robert Mueller significant more leverage against Manafort to get him to testify.  The point being that if Manafort knows he is going to get indicted by New York state, and it carries a significant penalty, Mueller can work out a deal where Manafort would get a much-reduced sentence in return for his testimony.  That might be far more appealing to him that waiting on the mercurial Trump to see if he's actually going to issue an pardon.  For that matter, even if Trump does issue a pardon, that would only (as noted) cover federal crimes, so it still could be in his best interest to testify, knowing he'd get a lesser sentence that the state might give him.

There's another twist in all this which I heard discussed by legal experts in regards to the story.  A few states, and New York is one, have a double-jeopardy law where, in certain cases, a person can't be charged with a state crime if they've already been indicted for the same crime in federal court.  However, there's a way to work around that -- the federal Special Counsel and state Attorney General would have to work out a schedule whereby the state would indict first and try its case before the federal government.  That's uncommon -- usually states defer to the feds -- but it's not unprecedented, and not unreasonable if the Special Counsel and Attorney general in question are working together.

As Robert Mueller and Eric Schneiderman are.

You can read the article here.

​By the way, there's an addendum to all this. The other reason I haven't been overly concerned about presidential pardons is because, when a person is pardoned, he or she loses their Fifth Amendment protection against self-incrimination and must testify openly and honestly.  Or else they're at risk of being charged with either perjury or obstruction of justice.  Well...

There was an article in RawStory yesterday whose headline was -- "Trump trying to pardon his way out of Russia scandal would be 'stupidest' possible plan: legal experts.

And their reasons?  Precisely what I noted above.  And it goes further, noting that pardoning potential witness in a case that concerns him could put him at risk of being charged with obstruction of justice.

And you can read that article here.

It's never a good sign for an administration when a top ethics and fraud official in the Department of Justice resigns because she can't get compliance from White House.

Actually, what Hui Chen wrote in a LinkedIn post was far more pointed.  Before resigning, she was the Compliance Counsel Expert in the fraud section of the criminal division for the Department of Justice.  What she wrote was:  

“Trying to hold companies to standards that our current administration is not living up to was creating a cognitive dissonance that I could not overcome.  To sit across the table from companies and question how committed they were to ethics and compliance felt not only hypocritical, but very much like shuffling the deck chair on the Titanic.  Even as I engaged in those questioning and evaluations, on my mind were the numerous lawsuits pending against the President of the United States for everything from violations of the Constitution to conflict of interest, the ongoing investigations of potentially treasonous conducts, and the investigators and prosecutors fired for their pursuits of principles and facts.  Those are conducts I would not tolerate seeing in a company, yet I worked under an administration that engaged in exactly those conduct[s]. I wanted no more part in it.”

Actually, that is only part of what Hui Chen wrote.   Another of her reasons, she says, is that her worked prohibited her from speaking publicly.  After the Evaluations of Corporate Compliance document she had worked on was released, it became "particularly frustrating" to her, she writes, "as I watched almost everyone except me being able to talk about (and often misinterpreting) my work."

Furthermore, Ms. Chen explains that another of her motivations is "to restore the notions of integrity, decency, and intellect back into our government. I yearn to be a part of that effort more directly than volunteering for and attending protests: I want to help elect candidates who stand for those values" -- something that governmental restrictions of the Hatch Act prohibit her from doing.

(I was particularly taking by her mentioning wanting to restore "intellect" into the government.  By that point in her piece, we expected her to say integrity and decency.  But her addendum made it leap out.)

And there's even more.  All thoughtful, all even-handed, all very blunt.  You can read her full piece on LinkedIn here.  (You may have to be a subscriber to access it, but membership is free.)  The article is pointedly titled, "Mission Matters."

And just to repeat -- it's never a good sign for an administration when a top ethics and fraud official in the Department of Justice resigns because she can't get compliance from White House.

You may have read about John Oliver being sued (along with HBO and Time-Warner) by the very litigious Bob Murray of Murray Energy over a long segment that the comedian did on the coal industry.  

Good news for you!  We have it here below.

Among the issues that Mr. Murray sued were Last Week Tonight's "intentionally, falsely, and outrageously" erroneous claims that Murray had no evidence that an earthquake caused a mining disaster, and that the show ignored other evidence and used quotes out of context.  It should be noted that the evidence Oliver does present is a U.S. government study that says an earthquake did not cause the mine collapse.

The show also presents an outrageously funny story on how Murray Energy was founded -- a story that the company insists is not true...though the story comes from Murray himself, and Oliver repeatedly says he too does not believe the story.

The suit contends, as well, that the show presented "meticulously planned" and "ruthless character assassination" for financial gain and to hurt his mining company.

Watching the segment, these appear to be massive hurdles to prove, though no doubt they'll provide their side or the argument.  But given that Oliver and Company knew going in that Murray was highly litigious (as the host explains) and that they had even received a "cease and desist" letter before airing the piece, I suspect they were incredibly careful to get their i's dotted and t's very-well crossed, and vet the thing through corporate lawyers and then re-vet it.

Besides which, it would seem they made it more difficult to prove damages to the business and Mr. Murray himself since they sued only days after the piece appeared.  Add to that the burden that, as much as Last Week Tonight presents material in a news-story way, at heart they are a satiric comedy show which, while it doesn't let them off the hook at all, does provide a much, much much higher bar to prove damage, especially against a public figure -- which Mr. Murray is through his many TV and public appearances.

HBO has released a statement standing by the program.  After watching the piece, it's easy to see why.  

And not only is it very strong, it's also extremely funny.  And in the best tradition of Last Week Tonight, do be sure to stick around and watch to the very end.

On Saturday, Trump tweeted -- "We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!"

One little problem. His lawyers are arguing in court that it is NOT a "ban."

Given that most previous courts have used Trump's own words during the campaign against his lawyers, this really doesn't help their case a whole lot. The sound you hear as the administration lawyers screaming in agony as they prepare for the Supreme Court...

One big problem.  3 AM then came.  And you know what that means.  And no, I'm not joking.  Just look at the timestamp on Trump's latest Tweetstorm today.
​

Meanwhile, Justice Department attorneys are running around, quickly shredding old strategy plans for their Supreme Court filing and desperately grabbing anyone who passes by their offices to find out if they have some idea of their own that they can try to argue.  And by anyone, I include the pizza delivery guy.

Security cameras in the DOJ have caught the staff reaction to Trump's latest Tweetstorm.
​

The ACLU may not be suing Trump's Executive Order on "Religious Liberty," which I mentioned this morning -- but an atheist group, Freedom from Religion Foundation is.  

As I noted earlier, one of the features of the Executive Order is to order more lenient enforcement of the Johnson Amendment, which has prohibitions against tax-exempt organizations from involvement in political campaigning.  Among other things, this not only would blur the First Amendment diving line protection between Church and State, but also would create wiggle room for "dark money" political donations.

The lawsuit claims that the Executive Order provides a selective benefit to religious organizations without any substantive risk to their tax-exempt status.

You may have started to see TV spots on behalf of the Freedom from Religion Foundation, since they've begun airing nationally within the past month or so, with Ron Reagan, Jr. appearing as their spokesman.

A few friends have asked me what I thought about the Neil Gorsuch nomination for the Supreme Court.  My answer was immediate.  He should not be approved.  But not because I don't agree with his politics or think he's unqualified or that he's too conservative or any ruminative reason..  It's far more basic.  I don't think he should have even been nominated.

To be clear, it's not that I don't think think Neil Gorsuch personally should have been nominated -- I don't think anyone should have been nominated by Trump.  Unless it was Merrick Garland -- again.

I think what the Senate Republicans during the last year of the Obama presidency -- not only not voting on Judge Garland, but not even agreeing to meet with him -- was perhaps the most constitutional disaster in my lifetime, if not the history of the United States, something that will change the fabric of the country for at least the next decade, if not many decades longer.  And I don't say that as hyperbole.  The U.S. Constitution gives the president the duty to nominate a Justice when there's an opening.  It doesn't say, "Unless there's more than two years left in his term."  It doesn't say unless he's a lame duck.  It doesn't say unless he's in a different party than the majority of the Senate.  It says the president nominates a Justice to the Supreme Court when there's an opening.  That's it.  End of story.

Republicans kept saying that it was "for the voters to decide" who the next Supreme Court nominee would be.  Well, first of all, no, that's not true.  It's for the president to decide who he'll nominate, and for the Senate to vote on it.  But even IF Republicans actually believed that (which they don't, not for a second, because I'll bet every nickel I own that if it was a Republican president nominating someone, the Republican Senate would have been voted on and approved that person), even IF Republicans believed what they were trying desperately to convince others even as their souls shriveled...the the voters did decide.  When the public voted for Barack Obama to be president, they voted on letting him nominate whoever he wanted to at any moment in his four-year term.  That's it.  End of story.

(Some Republicans tried to point to the non-binding "Biden Rule," but that was used under completely different circumstances.  And it wasn't even actually a rule.)

The Republican coup-like action was all the more disingenuous given that the Justice who's death left the opening, Anthony Scalia, was probably the most-strict "originalist" in the history of the Supreme Court, someone who likely would have lashed out at "reinterpreting" the Constitution to remove the president's right to nominate a Justice at any time there was an opening.  

If there literally wasn't time to conduct a fair, full investigation and hearing, I would understand that, the nature of reality and all.  But that wasn't ever the GOP argument -- nor could it be.  There was over a year left in Barack Obama's presidency.  That's a massively long time.  Merrick Garland was highly qualified, he'd been approved by the Senate for his federal seat on the bench, Republicans had spoken highly of him previously, and he should have been voted on.  And approved.

It wasn't just shameful what Republicans did, it was -- as I said -- the worst constitutional disaster in my lifetime, maybe in the history of the United States.

From my perspective, any Republican nominated by Trump for the Supreme Court should be turned down because I believe it is an illegitimate nomination.  Same thing, for the time being, as long as there's a Republican in the White House.  If that means no ninth Justice until the next Democrat is elected president -- however long (or short...) that is -- so be it.  That's harsh, but not even a blip on the Harshness Scale considering what Republicans did to Merrick Garland's nomination.  It's not likely to happen, I know, but it's still what I believe is right and proper.

What makes what the Republican's ghastly action even worse, which is a remarkable concept, is that I don't know how they fix the imbalance that the Republicans created.  The negative impact of what they did will take decades to fully play itself out, and even then it has lasting negative consequence

A friend suggested a solution.  Let senators agree to split the next two Supreme Court nominations -- the first one would go to Republicans and Trump, and for the next opening the Democrats would get to pick.  I said I thought it was a swell idea in concept, but a ridiculous, unworkable fantasy in practicality.  Republicans would never give the next pick to Democrats, and Democrats would never trust Republicans to keep their promise (nor should they trust them, given the GOP action last year) at the next opening..

I did offer an alternative, though.  The only one I could live with.  Mind you, it's not practical and wouldn't ever be agreed to, but it's the only way I can see the deeply-problematic situation being resolved -- other than waiting, which is my actual choice.  (And even "waiting" has problems since, for all I know, Republicans would try to block that again.)  What I suggested was a tweak to his suggestion -- I said the Senate should wait until there were two openings.  At that point, the Republicans and Democrats would each get a nomination.  And voted on jointly.  Mind you, a) I don't know how Democrats would decide on a nominee, and b) this won't ever happen, but that's the only way out of this utter constitutional disaster that was caused by Republican. At least my friend thought it was a good improvement on his idea...

But in lieu of that, as things stand, I don't believe that Neil Gorsuch should be approved for the Supreme Court.  And you may hold on to this article and re-read it if there's a next time when Trump nominates someone.  That's it.  End of story.

​The first two parts of this tale covered the plaintiff and defense each making their case in a two-week trial for which I sat on the jury at Santa Monica Superior Court.  The admirable Judge Lawrence Cho on the bench.  To quickly summarize, the case concerns a woman who was sitting on a chair bought at Cost Plus which broke.  She suffered broken bones, had two surgeries, a great many doctors’ appointments and physical therapy, and claimed to be suffering from CRPS (Complex Regional Pain Syndrome), a rare, but known debilitating and incurable form of chronic pain.  Cost Plus admits liability, but its two expert witnesses found no evidence of CRPS.  You can read Part One here, and Part Two here. 

                                                                    Part Three 
                                           The Jury Tries to Make Sense of It All
 
After that weekend of pondering, and after listening to the final arguments and having time to think about it all, as I went into the deliberation room in the late afternoon, I’d come to the conclusion that I did believe the plaintiff’s side as more likely.  Especially since there only had to be that 51% standard.  And ultimately that’s what the judge’s instructions were.  This is not a case where we must find “beyond a reasonable doubt,” nor do we need a unanimous verdict.  As a civil trial, it only has to be nine jurors out of 12, and the standard is what we believe to be “most likely.”
 
We didn’t go into the jury room until 3 PM, so it would be a short first day because we leave at 4:30.  Getting settled took a little bit of social maneuvering, but one member volunteered to by the foreman, and off we went.  (I had decided early on that I didn’t want to do it, for several reason, so I was fine with the choice.  My only hope was that we’d stay focused.)  .During the initial discussion, a couple of us suggested an early vote to see who felt that at least some form of chronic pain was involved here, or if the defendant was faking it.  And it was all 12 votes that there some form of pain, and not a scam.  I had felt it was extremely important to take this vote, because it meant that whenever people questioned her “character” or specific uncertain details (which both came up from a few jurors), we could point to the vote that we unanimously agreed this was not a scam, no matter what you thought of her character or if you couldn’t explain every single detail.  It was a good theory, and did help.  But not as much as I’d thought.
 
We also took a vote to find out at the start how many people felt strongly that CRPS was involved (“strongly” because the operative word) – which was critical, because it would impact our later decision on future monetary payments.  And five jurors voted that they believed it was.  I was one of those.  And I was pleased to see that the doctor did, too, as well as a couple of the other jurors I particularly respected.  This didn’t mean the other seven didn’t think CRPS was involved, just that some might not be sure yet that it was likely.
 
Before leaving for the day, we spent most of the time trying to focus on a similar, but importantly different question of did we, as a jury, believe that CRPS was “likely” involved and caused by a trauma.  That didn’t mean the direct breaking of the chair, though.  As we were instructed by the judge – and as I and some others pointed out – if the CRPS was caused by either of the two surgeries, the defendant was still liable:  because the second surgery was required to fix the first surgery, and the first surgery was necessary because of the chair trauma.
 
I also made a case at this point which the jury foreman said helped convince him that CRPS was “likely” involved.  (That 51% standard.)  The short version of my position was that the defense had two expert witnesses.  And the second of those witnesses had made clear that he believed the plaintiff was scamming.  But as I pointed out, we as a jury had unanimously decided she was not scamming.  And that meant we had to throw out his expert testimony as being without substance.  In fact, after saying that, most everyone jumped in and vocally agreed that his testimony was dismal.
 
We took a final vote for the day about this, how many jurors felt it likely that CRPS was involved in at least some way.  The vote was 8-4.  That was quite a bit up from the initial 5 who “strongly” believe it, though still one short of the 9 needed to vote her the large damages she’s asking.  However, there was a lot of discussion to go, so it would be interesting to see what thinking people did overnight.
 
And that lead to the interesting final day.
 
Interesting not just for the deliberation, but because arriving at the courthouse in the morning, the place was surrounded by police officers, the area blocked off, police cars all over the front lawn and helicopters overhead.  It turned out that a distraught man whose wife worked at the court drove his pick-up onto the front lawn, holding a knife to his throat and threatening to kill himself.  Eventually, he was gotten out of his vehicle – whether by Taser or not wasn’t clear – and taken to a nearby ambulance.  We eventually were able to enter the building and taken into the jury room an hour late.
 
It was a fascinating day, complete with a couple of sort of “twists.”  Not in the dramatic, third-act story sense, but more of unexpected perspective.
 
Overall, for the most part, I found the discussion very thoughtful.  Most people (eight of the 12) thought that the plaintiff did have some form of CRPS, and everyone felt she had chronic pain, even if it wasn’t CRPS. 
 
So, what we did was go through the entire Life Plan and its associated costs…line-by-line.  That was 34 items in all, covering medical care treatments, prescriptions, home care needs and much more.  Some items were reasonably quick to deal with, other were very long, thoughtful discussions.  Quite a few of the Life Plan requests were dismissed entirely, most of the others were cut to lower levels.  Only a handful were kept at the full total.
 
It was all dealt with a good amount of impressive thought.  In fact, at the end of deliberation, after everything was all decided, I commented that though I didn’t agree at all with many of the results, I was impressed by the serious thought that went into it all.
 
And so I was.  But therein lies the first “twist.”  There’s more later.
 
It was a smart, thoughtful jury.  And I voted for three of the four questions we had to answer.  (Past and future medical costs, and past and future non-medical, better known as “pain and suffering.”)  But was we sat back in the courtroom for the decision to be announced, I was disappointed with what we decided.  It’s not that it was unfair.  It was eminently fair.  It’s that I think the perspective was narrow, and the plaintiff who eight of us had decided actually had CRPS and who all of us had decided had at least some sort of chronic pain got short shrift when it came time awarding her meaningful awards for the damage done to her.
 
Let’s head back into the jury room.
 
There were about four of us who generally sided with high awards.  And three jurors were in the middle.  Two others shifted back in forth, though leaned towards uncertain if her needs were at the level being asked.  That left three jurors who were pretty adamant the whole time about not awarding her much.
 
Again, this is fine in general theory.  It’s a mix of people all brining their own subjective thoughts to deciding.  But remember:  all 12 had agreed she had some sort of chronic pain, largely for the rest of her life.  And a full eight jurors (just one short of the nine needed for a decision) had agreed that she had CRPS, an incurable, debilitating condition.  Yet that seemed to get ignored when it came to award her money for that lifetime pain.
 
And it meant, with three people largely against awarding much at all, with two always on the fence, that it became very difficult to get the nine votes needed for each item, in order to compensate the payment needed for lifetime care, as well as pain and suffering.
 
The problem too was that there were several people still questioning her “character,” wondering if she was perhaps being greedy or shouldn’t have file a lawsuit so fast (it was maybe nine months, which isn’t all that fast after an accident and surgery) or exaggerating her symptoms.  Alas, I sat between two of them, so it was sort of like stereo indignation.
 
Some of the questioning of her “character” came from wondering about several of her actions if she “really was in so bad shape.”  It’s understandable to wonder, but a bit inflexible in trying to accept that people act in many different ways than we ourselves might think, especially when in pain – sometimes, for instance, a person living in pain might do something we find unlikely simply because they have a need to feel normal or get some pleasure in life – and inflexible too in not ignoring, as was continually reminded, that the pain was not horrific 100% of the time, but had some ebbs and flows.  And I also have the sense that for some of this questioning her “character,” it might have come from the plaintiff simply looking really grumpy, almost disdainful the whole trial and not especially warm and “likeable.”  (This wasn’t ever mentioned during deliberation, and I could be absolutely, totally, completely wrong, but it’s how the constant distrust came across.  Wondering is one thing, but having constant distrust is another.)  Well, sure, the reality is that she did look grumpy.  Really grumpy and almost curmudgeonly.  Maybe even “untrustworthy.”  But then…she was in debilitating pain and had been for three years!  And was facing it for the rest of her life.  I think most people would look really grumpy.  The problem this caused, as I said, is that you needed nine votes for every decision we made, so having three people pre-disposed to say “no” to so many things – and a couple other jurors always on the fence – meant it was an uphill battle the whole time for those of us who felt her illness was very real, very agonizing most of the time, and something that she would face for the next 40 years.
 
(To be clear, these three and the few others were all very diligent, paid thorough attention and were well-spoken in expressing their opposition.  It’s just that they were so dead-set by default on so many issues that the plaintiff didn’t deserve much, if sometimes anything, that those of us arguing for more compensation were always arguing “down” from our awards, or giving in completely on lost-causes issues, which ultimately had ramifications.)
 
I also was a bit bothered that some of the decision-making got to the level of medical micro-management.  It was absolutely our right to do so.  And the process of deciding each line item was very thoughtful, and it all got a full airing.  But we weren’t there as her attending physicians providing her medical care.  We were jurors.  And no matter how fair and thoughtful our deliberation of such things were, I thought it went uncomfortably much too far.  In trying to be fair, we were pushed around the bend.  Into a land we had little reason or qualifications to be.  At one point, we decided which treatment she should be paid for, even though she and her doctors had preferred the other.  Yes, we had the right.  But how small to use it?
 
Some of the argument was that at a certain point later in her life she would be on assisted living and gets some of those medical costs covered anyway.  It’s an understandable argument.  It also took far too much for granted.  Because we didn’t know what extra care she would nonetheless need.  And much of the argument was that the plaintiff didn’t make a case that a specific treatment or medication was necessary – but our standard should have been that the defense didn’t make a case that it wasn’t.
 
And so we reached decisions on the two questions of medical care.  The total being asked for about $4.6 million.  We settled on about $1.1 million.  That’s a lot of money.  But it’s over 40 years.  So, as big as the number sounds in bulk, it works out to paying medical costs of about $25,000 a year.  For someone with a crushing disability and high medical needs, who we had decided unanimously had some form of chronic paused caused by a trauma the defendant admitted liability for.  And it’s a cut of 85% of what was being asked, -- much of which will likely still have to be paid, even if some of the jury questioned it.
 
That left us deciding on pain and suffering.
 
She was asking for a lot.  About $3.75 million for past needs and future.  But again, it’s for quality of life over 40 years.  And as much as it is – and it’s a lot – only the day before, ESPN reporter Erin Andrews received $55 million in her lawsuit for being spied on with surreptitious naked photos released.  The two cases are not remotely the same.  And we could argue which is worse – such horrible invasion of privacy, or a life-impacting debilitating injury.  They’re both terrible.  The point, though, was that awarding $3.75 million isn’t the HUGE, in the stratosphere figure it seemed, when looked at in full perspective.  (And yes, I brought this up.)
 
It was another sense of perspective that came into play when one juror brought up the very small limits in California for pain and suffering in medical malpractice, just $250,000, while noting that those limits are generally considered unfair.  And that became our base for discussion.
 
Alas.
 
The problems with this are many.  For starters, that paltry limit is absolutely considered unfair.  Even the person who brought it up made that clear.  Additionally, this wasn’t a medical malpractice case.  Third, to repeat, this wasn’t a medical malpractice case.  Fourth, there are other awards that juries can make in those instances that far exceed that limit, though for medical costs.  Fifth, this paltry $250,000 limit was set in 1975 and hasn’t been adjusted by one nickel for inflation in 40 years!  And fifth, again, this wasn’t a medical malpractice case!!  And finally, sixth, it’s critical to understand that this low-ball $250,000 limit (for medical malpractice) came about from an agreement made (40 years ago) in a bill written by the insurance companies to limit their own costs.  It had nothing to do with fairness, what it right and protecting victims.  If a botched surgery resulted in you losing your leg for the rest of your life, all you can get in California for pain and suffering is…$250,000.  For any real, actual pain and suffering you may have, whatever it is, for a lifetime, the most you can get in California is (say it together) $250,000.  That’s because the insurance companies wrote the bill.  And the added huge problem with this is, because the limit is so low, many people who have suffered massive pain and suffering – deaths of family members, loss of limbs, debilitating lifetime handicaps and more – can’t even get into court because the amount is so tiny that it’s far too low for a lawyer to take on the case, since they work on contingency.  It’s a horrific law on many levels.  Created by insurance companies to protect their bottom line.  Yet as bad as the law is, it’s only about medical practice.  It had absolutely zero (nothing) to do with our case.  But…it became the base of our discussion.
 
Several of us in the “upside” group wanted to give the plaintiff up to $2 million.  One wanted to give the full amount, $3.75 million.  But so many others only wanted to give that $500,000 basement, or perhaps maybe up to $750,000.  One juror wasn’t crazy about giving anything – zero for 40 years of chronic pain and suffering we’d agreed existed – but begrudgingly agreed that $300,000 would be fair.  Keep in mind, when we do math again, that as much as $750,000 sounds like a ton of money – and is – it works out to less than $19,000 a year for quality of life.
 
After a lot of back-and-forth (a lot) and trying to be flexible, those of us who wanted to award multiple millions dropped down to $1 million – for 40 years of pain and suffering.  The others edged up for $750,000 to $900,000.  And there we were stuck.  Eight votes for $900,000.  Four for $1 million.
 
Again, remember:  if anyone thinks all this is way too much money, a) you didn’t hear the evidence from acclaimed attending physicians or know how enfeebling her incurable chronic pain is, and b) these were all jurors who had unanimously agreed she had chronic pain, eight of whom agreed she had the incurable, and worse CRPS.
 
There was one other hurdle that I don’t think several jurors could ever get past.  I got the sense from what was said by these few that although they fully accepted there were debilitating injuries, lifelong treatment, and devastated quality of life, they simply had a hard time awarding so much money to someone who, in the end, “fell off a chair.”  The problem is – the cause was unfortunately simple, but the results were crushing.  As Shakespeare wrote, for want of a nail, the war was ultimately lost.  Yes, she did just fall off a chair.  But as a result, the rest of her life was pounded.

 
I tried hard to make a case for raising that $900,000 amount to $1 million, saying that the increase only worked to a piddling $2,500 a year.  For improving a person’s quality of life.  For allowing someone with a lifetime disability an extra touch of comfort to move on in the world.  But they wouldn’t budge.  And as much as $1 million was my bottom limit, I finally got fed up and offered a compromise.  I would come down to $950,000 and vote for that, making it the required nine jurors, if the other eight would agree to go up $50,000.  I just figured, much as it was below my limit which was far below what I felt deserved and needed, that being unable to reach an agreement for $50,000 seemed senseless.  The other eight agreed, and we had a decision.
 
The past and present pain-and-suffering was $975,000.  That made the total award (along with the medical award) just under $2.1 million.
 
When the decision was announced in court…neither side was very happy.  The plaintiffs had asked for a bit over $8 million.  The Cost Plus defendants had asked for $27,000.
 
I think most of the jurors were reasonably happy, though some thought it was a bit too much.  I know that several thought it was far too little – an average of $50,000 a year for a life of chronic pain.  Moreover, probably 40 percent goes to the lawyers who likely worked on contingency.  So, it comes to maybe $30,000 a year to compensate the injured plaintiff for necessary and deserved medical costs (that will have to paid), as well as pain and suffering of a chronic, debilitating trauma.  And I was one of those unhappy that it was much too little.
 
Which brings us to the other “twist.”  I’ll get there in a moment.
 
After the trial, a few of us spoke with the lawyers for the two sides.  And later, the plaintiff joined us.
 
Most of what was discussed was just “inside baseball,” as the expression goes.  Specifics of minutiae about the case, how the jury reacted to moments during the trial, and what was important in the deliberation.   We said, for instance, that it made zero difference to us whenever the defense attorney kept bringing up how much the plaintiff witnesses were being paid for their time – we explained that we simply listened to what they said, and figured they were under oath and were testifying honestly.  (All except his second witness, who kept screwing himself over almost every time he opened his mouth.)
 
One of the plaintiff attorneys mentioned that they were wary about trying the case in Santa Monica, which is known for being a tougher courthouse than downtown L.A., since the jurors here tend to “hate” lawyers more, which generally works against the plaintiff bringing the case.  I’m surprised, since I thought jurors are assigned randomly.  And surprised why a Santa Monica court would be more pre-disposed against lawyers.
 
I was a little taken aback by how bothered the defense attorney was at the judgment – he said he really didn’t believe the plaintiff at all and, in fact, thought she was lying about it all.  That was something the jurors not only dismissed, but were unanimous.  Even our most reticent naysayers agreed that she had some manner of chronic pain, and eight jurors believed she had CRPS.  In fact, it was our acceptance that the chronic pain was absolutely real that made us dismiss the evidence of one the defense’s two witnesses.
 
We also were told that only the plaintiff’s attorney paid for our pizza lunch delivered to the jury room.  Cost Plus wouldn’t split the bill.  (They didn’t have to, and at that point they probably thought we were deciding against them, which we were.  But it was still interesting to learn of the pettiness.  But, they only wanted to pay $27,000 in the trial judgment, so it sort of makes sense.)
 
An attorney for plaintiff was wondering what strategies could have been handled differently.  We discussed that for a bit, but ultimately I felt the lead attorney did an excellent job, and he came off reasonably well.  There were perhaps too many witnesses though they were fairly necessary.  Ultimately, the jury was the jury, and it will act as it rambles.
 
One personal thing I learned was why I had gotten selected for the jury.  “It was when you said you were skeptical of both sides,” the defense attorney said, offering me a hint for next time.  “Lawyers love that.”  Lesson learned.  (Not that I had to explain myself further after the trial, it was a tad late for that, but I wanted to clarify that when I had said I was “skeptical,” it wasn’t because I’m cynical.  In fact, I said to him I’m quite a positive person, but when people tell me “facts” out of my experience, I require a foundation to believe them.  “I understand,” he replied.  “But we love skeptics.”)
 
But a few things in our joint conversation stood out.  No, sorry, that’s wrong – they leaped out.  And then they grabbed you by the lapels and shook you silly.  And they were such a twist to my perception that it was like they became a tornado.
 
The first thing that leaped out is when I spoke with the plaintiff, and although I’d believed previously that she had CRPS, I now am absolutely certain of it.  The trial was over.  Her stress of the several-year ordeal could be released, and she could let her hair down.  And yet close up, talking to her at length, this was a woman who clearly was in physical pain, who held her body awkwardly, whose face was noticeably strained.  Whose hand was held twisted.  Whose voice was halting.  Fighting back tears.  Withdrawn, protective, walking slowly.  She had nothing to prove to anyone, it all was over.  Could I be wrong in my observation?  Absolutely.  Could I be right?  I am.
 
Second, I learned that long before the trial, one of the attorneys for the plaintiff had wanted to settle, but Cost Plus flat out refused.  The amount the attorney suggested, that was turned down, was…$2.1 million.  The judgment by the jury was only $56,000 less than that!  This whole trial and all its massive costs, which are lost to the plaintiff from her award were unnecessary and could have been avoided.  For that exact same amount.
 
The third thing was …well, ghastly.  We had awarded $2,044,000.  The plaintiff had a judgment level that had to be reached in order for her not to have to pay the costs for expert witnesses on both sides.  If she reached that limit, Cost Plus would have to pay for the expert witnesses.  If she was under the amount, she was liable for the amount.  That level was -- $2.1 million.  She was just a trifling $56,000 short.  (I’m still galled by this, and by my own actions, accepting lesser amounts throughout the deliberation.  In fairness, I had no way of knowing this.  But I still feel terrible.  Just $56,000.)
 
The fourth matter was…well, also ghastly.  It turns out that the original settlement offer from Cost Plus was only something like around $250,000.  (That’s not the ghastly part.)  During our lunch break, when it was clear we’d been out a long while which likely meant we had believed the plaintiffs and were trying to figure out how much to award, Cost Plus panicked that we might award the whole amount, so they finally, after years of refusing, raised their offer.  It was increased to $3 million.  Because the plaintiffs believed the same thing, that because we’d been out so long, we were considering a huge award, the woman turned down the offer.  She was devastated.  Crushed.  She’d lost a million dollars by her decision.  I had nothing to do with that, of course, but still felt awful for her, including my sense of not being part of getting her what she expected and deserved.  Ultimately, no, I don’t think I or the other few would have been able to get the injured plaintiff much more.  But it still feels lousy being party to such a lowball judgement.  And it was lowball.  Because what this means is that even the defendants proposed that the plaintiff get a million dollars more money in a settlement offer than this jury did.
 
The reality is, with the money that goes to lawyers – and expert witnesses – and other medical costs the plaintiff incurred, and would also have to pay forever in the future, she was left with a comparatively small amount for the next 40 years.  As she was imploding on herself, I tried to explain that she had no way of knowing when she made her decision.  And that though she was unhappy with the judgement amount, less than settlement offer, I tried to give her something positive, that the way the juror room was going, she could have even gotten a great deal less.
 
In the end, I know she got $2 million.  And that’s sounds like a lot, and as a bulk amount with no context, it is.  But she doesn’t get a great deal of that money.  After all, 40 percent goes to her lawyers.  And she has to pay for all the expert witnesses on both sides (which might be as much as $100,000.)  And most of what remains goes to medical costs that she has now for the next 40 years, and which have to be paid.  And whatever is left to make up for a quality of life that most of us take for granted, she’ll likely have to use much of (if not most) to cover medical costs that the jury cut by 85%.  And she has a debilitating, often-agonizing illness for the rest of her life that eight jurors agreed to.  And that all 12 jurors agreed was chronic and painful.
 
It was an accident.  Cost Plus didn’t sell a line of shoddy products.  A chair broke.  A rare trauma occurred.  A woman had a lifetime disability.  And Cost Plus admitted liability for it.  It was an accident.  And so unfortunate.  But unfortunate too is that they refused to pay a fair settlement at the beginning, and a trial could have been avoided for far less than they later offered.
 
And I feel lousy that those of us who felt the plaintiff – who has a difficult life ahead of her, for many reasons – couldn’t get even close to what she deserved and needed, or what could at least help her quality of life more.  I feel lousy, not because I wasn’t convincing enough to get what I thought was decently fair and didn’t win My Arguments – but because we all agreed that she actually had a chronic pain that would likely last for the next 40 years, and I couldn’t keep people focused on that, and was so accommodating to a few people who weren’t being accommodating in return, until our initial agreement backtracked on what we awarded so much.  I just feel lousy.  Actually, “lousy” doesn’t do it justice.  I feel gnawed.  And as days passed, I got angrier about how the judgement was reached.  However, lousy will suffice.  But at least today, lousy as I feel, I don’t have incurable chronic pain.  However, I’m very glad that we were able to get her what we did, in the face of those few who would have been fine giving next to nothing.  Everyone acted thoughtfully, and reasonably well-intentioned.  Many, impressively so.  But, as time goes on, most-especially after my post-trial conversation, I am even more convinced they were unfortunately profoundly wrong.  However, she got a judgment in her favor.  She’ll be able to pay some medical bills for a while.  And she appears to be a strong-willed person.  Who has a deeply supportive family.  Even if that won’t carry her as far as she needs, I’m glad she has that foundation.  And wish her well.
 
And I’m appreciative how terrific Judge Lawrence Cho was.  And his court assistant, Lisa, who was a discombobulated, yet efficient joy.  We never learned her exact title, or last name.  She almost doesn’t need one.  She’s more mythical that way.
 
A final comment.  During deliberation, one of the jurors quipped that if he was ever a plaintiff, he hoped he had me on the jury.  It was a cute joke, and I laughed – but I also said back with a smile, but pointedly, that if he was ever a plaintiff and had been wronged, and deserved everything he was asking for…I hoped I was on his jury, too.  And the truth is, too, that if he was ever defending himself against a false and unfair charge, he should hope I was on that jury, as well.
 
God forbid I’m ever called to serve on a jury again, but if I am and asked if I can be fair, I know what I’ll say.  Yes, absolutely I can be fair.  I will be completely fair to all the evidence I hear on both sides.  But – I will in no way be fair in the jury room.  My responsibility is not to be fair to who the jurors are, nor them to me.  It is to be fair to the evidence.  It is to be fair to the plaintiff and defendant.  It is to be fair, as well, to the opinions of the jurors.  Sometimes that may mean reaching a reasonable accommodation with other jurors who are willing to accommodate equally, balanced in fairness.  Life, after all, is full of uncertainties.  None of us has all the answers.  But the goal isn’t to reach a verdict.  It’s to reach the right one. 
 
And also, I’ll do my best to keep that “I’m skeptical of all sides” to myself…
 
One thing above all is clear. 
 
An actual court case is worlds different from what’s seen in movies.  As it should be – you’d bore the audience silly.  A real court case is long, slow, messy, monotone with few moments of riveting drama.  Or often unriveting drama.
 
And then we went home.

​In Part One of this journey into a two-week trial for which I sat on the jury, we learned the adventurous tale at Santa Monica Superior Court of the opening statements and the plaintiff’s side making its case.  The estimable Judge Lawrence Cho presiding.  You can read the whole thing here.  The short version is that the case concerns a woman who was sitting on a chair bought at Cost Plus which broke.  She suffered broken bones, had two surgeries, a great many doctors’ appointments and physical therapy, and claimed to be suffering from CRPS (Complex Regional Pain Syndrome), a rare, but known debilitating and incurable form of chronic pain.  Cost Plus admits liability, but the two sides couldn’t reach a settlement.

                                                                    Part Two 
                                                     The Defense Strikes Back
 
The defense for Cost Plus only had two expert witnesses.  Both very eminent.  Both reviewed all the depositions that had been given and all the medical records.  And both had examined the plaintiff, though just once.  In one case, the examination took an hour.  In another, it was only about eight minutes.
 
Both defense medical experts had the same conclusion, that the plaintiff did not have CRPS.  While they each said they wouldn’t ever claim a person did or didn’t have pain, they each felt that none of the records they saw or exams they performed showed any instance of CRPS, which requires certain, specific symptoms to be present.  And it requires these symptoms to appear within a certain time period after a trauma occurs.  (The trauma is usually an injury, but it can also be a surgery.)  And for both defense witnesses, they felt that the plaintiff wasn’t experiencing the pain she was claiming.  And if she did have CRPS – which they did not see – it could only have come from an elective surgery she chose to have later.
 
The plaintiff’s rebuttal was basically – you only examined the patient once, and briefly.  Your exams occurred within days after she had had pain management treatment.  These other doctors were almost all her treating physicians, not just expert witnesses being called to make a judgment.  Most of them saw the plaintiff numerous times.  Since her doctors were all eminent medical experts in the field who either diagnosed CRPS, or saw symptoms of possible CRPS, does that mean they’re all wrong, and you alone are right?
 
The defense witnesses did have responses to all these question, not especially compelling ones, but did have answers.  And they both felt, yes, I’m right and they’re all wrong.  But what was most pronounced in the cross-examination is what I referred to before, when the plaintiff counsel’s heated reactions stood out. 
 
For both defense witnesses, when the plaintiff’s attorney began his cross, he was…well, I think the common expression is “spitting bullets.”  He started loud and got louder as he went on, almost yelling it seemed.  Belligerent towards the witnesses (one of which, he not only knew personally, but had sent clients to for treatment), and getting louder all the time, to the degree that you felt if this went on at the same pace his head might eventually explode.  Several things set him off, but the most was the suggestion by the second defense witness that his client was lying and couldn’t be trusted.  This went on until the defense counsel cried out his objection about how opposing counsel was actually yelling and badgering and acting inappropriately.
 
Both times the judge (most understandably) agreed, and admonished the plaintiff counsel to tone it down.  The attorney apologized, explained how emotional this was and promised to do better.  He still remained emotional for a bit both times, though eventually would calm down to an even-keel and continued calmly the rest of the way, if pointedly.  (He also got the doctor who had written in a report that the patient’s word was untrustworthy to acknowledge that it was an inappropriate choice, and retracted it.)
 
Needless-to-say, it added a wee bit of spark to the proceedings.
It also allowed him to get across his point to discredit the witness, which he did.  Actually, it’s almost fair to say the witness discredited himself.  This was widely agreed in the jury deliberation.  More on that later.
 
He also drove home a point with the first defense witness.  The witness was very accomplished as, I believe, an orthopedic surgeon and scholar.  But he’d only studied CRPS 27 years before in medical school, and in the subsequent period, only had dealt with 25 cases of CRPS out of 40,000 patients.  By contrast, the CRPS expert for the plaintiff handled two CRPS cases a month, every month, for years.  He saw as many cases of CRPS in one year as this remaining defense witness saw in his 27-year career.
 
Additionally, he refuted the defense suggestion that even if CRPS existed, it had to have only come from an elective surgery the plaintiff had, by repeating testimony from his CRPS experts that CRPS cannot occur from the cosmetic surgery she had.
 
And so the week ended, with only final arguments in sight before the case went to the jury for deliberations.
 
Coming back from the weekend, from the moment we walked into the courtroom on Monday, ready for final arguments, it was clear that things were different.  The room was packed.  (One of the jurors commented to me, “If I knew it’d be this crowded, I would have dressed nicer.”)  Whereas during the trial, there were usually only about five to seven people watching, now almost every seat was full, close to 30.  Most seemed to be lawyers – either that or it was the best-dressed group of courthouse visitors in the world.
 
The plaintiff counsel’s final arguments were quite long, probably about 90 minutes.  Very detailed with PowerPoint visual aids to reiterate his points.  He acknowledged that there would be computer glitches, and there were.  Like a list that began with #1, and for its second point became #5.  And not realizing that when you click the remote to move the slide, you have to point it at the computer, not the screen.  It was all just straight graphics, except at one point there was a single, slight “animation” – when the Scales of Justice, filled with plaintiff evidence, tilted.  “It’s like we’re Pixar,” he quipped.
 
We also found out the total amount they were asking for.  The past and future “pain and suffering” was around $3.75 million, so together with past and future medical costs the total was about $8.2 million.
 
Needless-to-say, the defense counsel’s final arguments disagreed.  Fairly vehemently.  Their suggestion was in the $27,000 range.
 
Well, okay, so that’s why the two sides didn’t settle.
 
Over the weekend, and before final arguments began, I began to do my pondering and had various thoughts.  I really wasn’t completely set in my mind, but was leaning to voting in favor of the plaintiff.  There were some questions and uncertainties, since all pain, but notably chronic pain and especially CRPS is so subjective, but the weight of 15 highly-knowledgeable people most of whom actually were attending physicians carried more weight for me than two high-end experts who examined her for an hour and eight minutes respectively and had attendant question marks with their testimony.  Yes, they also reviewed the records, but so did the attending doctors on the other side.
 
It would be one thing to say, “I see zero evidence of CRPS,” which is a fair-enough observation to make.  But when so many other people said that they did see evidence of it, some considering their evidence to be symptoms, and some seeing enough to actually diagnose it, then having that many “seeing” it was substantive.  Especially since the exams where it didn’t seem to appear were done soon after the plaintiff was on treatments for pain management and might well have had the pain more under control at those time.
 
Through the trial (and final arguments) there was a question about why it didn’t seem to be diagnosed for 15 months.  But when the expert in CRPS had testified earlier, he explained that he was in the midst of doing a study about CRPS during its first year, and he noted that it’s incredibly difficult to find participants since most people aren’t diagnosed with CRPS for over a year, even though CRPS is there.  In fact, in the two months they’ve been trying to find subjects who qualify for the study, they’ve thus far found…zero.  He said that’s because usually either no one is looking for CRPS yet, or because doctors see the symptoms but see them as related to something else.  (Yes, there’s pain in the shoulder, but there was shoulder surgery, so of course having pain there is to be expected.  That must be what the pain is.  Only later, when the normal shoulder pain should have disappointed, and other CRPS symptoms keep showing themselves, do evidence of CRPS become more clear.)
 
Did the plaintiff, in fact, have CRPS?  I didn’t know for certain, though it seemed likely.  Did even if not CRPS, did she at least have some sort of chronic pain?  I didn’t know that either, though I did think that was probable.  And if it was CRPS, when did it occur?  I had no idea to that either, though if it existed, then it probably occurred early on, likely from the chair collapse, and got exacerbated by her first surgery.  But ultimately, the details of the case and realities of her life made it seem to me that for this all to be a “scam” would take an effort far too convoluted for far too long – two necessary surgeries and over a hundred doctors’ appointments and physical therapy sessions, and (importantly) make her less available to her young children, especially one with a terminal illness than one would think reasonable to consider.  Was it possible that there was no CRPS or chronic pain?  Sure?  Was it probable?  I was leaning toward not.  Especially since the only burden of proof for there to be CRPS, or just chronic pain at all is 51% likelihood, not certainty or beyond a reasonable doubt. But I was curious what the other jurors were perceiving it all.
 
And then, in the end, which was the core of the trial, if she indeed did have CRPS, then how much money was she due?  Not just for the medical treatments past and future, but pain and suffering.  And for that, I really had no idea, though did have some thoughts.  For that, however, I wanted a closer look at the documentation of the “life plan” that had been prepared by the plaintiffs.
 
Mixed into my thinking about all this was a reality I felt I had to recognize about products in general.  Not that it necessarily had a direct bearing on the case, but it still impacted what was being dealt with.  We know, after all, that some products seem to have a particularly high level of responsibility when being built with special care for safety.  Cars, guns, power saws, lawnmowers, electrical wiring, things like that.  But for other products, like constructing a chair, while craft and attention to detail is important, it isn’t the kind of item that one considers central to causing $8 million worth of injuries.  What I mean is that a chair that fails isn’t a case of thoughtless attention to a person’s life-safety, but a pure accident.  Especially when there isn’t a record of countless chairs made by the company failing.  Ultimately, as I said, that isn’t a factor to be considered during deliberation.  And if the costs needed are in fact such that they do total that much, then so be it, I would be absolutely fine awarding it, if that’s what is actually required.  But believing something is a pure accident, rather than gross negligence – even if it wasn’t something we had to decide – was still something I felt hovering over the case in my mind.  And I remained as curious as every to hear other jurors’ experience and views on all this.
 
Tomorrow:  The exciting conclusion as we go inside the jury room for deliberation, and then post-trial conversations with the lawyers for both side, as well as the plaintiff.