"Proximate cause" in the legal news

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The fine line separating what a jury should know and learn from what it should not know and learn became either finer or blurrier, depending on your perspective, in a recent New Jersey case (here) where a lawyer was empanelled on the jury. I don’t know how common it is for a lawyer to be selected for jury duty, but I’d guess it must be pretty rare. I know that as an expert witness I’ve never made it past the voir dire stage in the many times I’ve been summoned for jury duty. I’ve always been “struck” by the lawyers when they learn that I’ve been an expert witness in scores of trials. They don’t seem to want to let anyone who has professional experience analyzing evidence be a trier of the fact in their cases. And that may be the right way to do it, for all I know. In this case, however, the opposing lawyers actually picked another lawyer to be a juror.

The personal injury case was Barber (a customer) v. Shoprite (a grocery store chain), in which Joyce Barber slipped on the floor and was severely injured. During the usual voir dire of potential jurors, the opposing lawyers decided to include attorney and state senator Robert Martin as one of the six jurors to decide the case. At the end of the trial, this jury awarded the plaintiff $876,000 in damages resulting from her fall in a Shoprite store.

Some months later, the defendant appealed this judgment on several grounds, one of which was that lawyer/juror Martin had subsequently published an article in a law journal describing his apparently unusual, enlightening, insider’s-experience as a juror. The three-judge appellate panel dismissed most of the defendant’s claims, but came down hard on lawyer/juror Martin, who was also the jury foreman. Not uncommonly, his fellow jurors were confused by some of the instructions the judge gave them before they retired to deliberate.

In his law journal article, Martin described the jury instructions as an hour long “mini-course in tort law” and added:

For example, I was asked to clarify what the judge meant by
“proximate cause” and its significance in proving a negligence

A year after the decision, the appellate court remanded the matter for a hearing in which the jurors, including Martin, were questioned. Here Martin openly reiterated what he said in his law journal article:

We were going through [the] instructions, and I believe the words, “proximate cause” were actually the language, and acouple—at least one juror wanted to have a little more clarification as to what “proximate cause” was. And so we, you know, talked about that…I am pretty familiar with the generalprinciples of tort law, and I heard [the judge] give [his]instructions to us, and I could easily remember the instructions that [he] gave us. And if there was a question or two, I could sort of regurgitate it better than most because I was very familiar with the kind of language and the terminology and the way in which it’s applied in doing a personal injury case…I did not, you know, present my own legal theory on what I think tort law should be.

I’d guess that most of us, perhaps lawyers included, don’t have a very good idea of what “proximate cause” means. The late highly respected legal analyst, David Mellinkoff, called this term of art “concise gibberish” (The Language of the Law, ((1963, p. 401).

Bryan Garner’s Dictionary of Modern Legal Usage (1995, p. 711) says proximate cause:

…is a term of art having little to do with physical causation, emphasizing instead the continuity of the sequence that produces an event. The meaning is elusive: a cause to which the law will take notice.

When I’m confused about legal terminology, I usually go to Peter Tiersma’s book, Legal Language (Chicago,1999), which has a marvelous chapter called “What Makes Legal Language Difficult to Understand?” Tiersma sees legal language from an enlightened position because he’s a law professor who also holds a PhD in linguistics. First on his list of difficult features is technical vocabulary:

Some of the best evidence that people have trouble with legal terminology comes from the fact that jurors, after they have received their instructions, all too often turn to dictionaries for enlightenment. Jurors do this even though the rules prohibit them from consulting any outside source (which includes dictionaries). A survey of American decisional law found many cases in which jurors have been accused of misconduct for looking up words, including assault, battery, culpable, custody, entrapment, inference, insanity, legal cause, malice, malpractice, motive, murder, negligent, possession, premeditate, preponderance, proximate, prudent, rape, reasonable, undue, utter (as in utter a forged check), and wanton. (p. 203)

Yes, “proximate” and “cause” are on Tiersma’s list. Remember, the Barber jurors only wanted to know what the judge meant by “proximate cause.” Yes, the jury could have given the bailiff a note to the judge requesting a definition. But based on what Mellinkoff, Garner, and Tiersma have to say about the expression, the chances of getting a helpful answer seem pretty slim. We can only guess what Martin might have told his fellow jurors about “proximate cause,” but it can’t have been any more helpful than this.

Now, back to the three-judge panel’s decision in Barber v. Shoprite. The question was whether irregular influences on the jury could have a tendency to influence the jury in arriving at a verdict in a manner inconsistent with the legal proofs and the court’s charge. The panel wrote:

Tendency to influence the verdict — not probability or likelihood – is the standard for determining whether a new trial should be granted…It is not the role of the foreperson to explain legal concepts to the other jurors…our review of the entire record in this case convinces us that Martin’s explanations to the jury had a "tendency" to influence the verdict…That "tendency," coupled with the cumulative trial errors, deprived defendant of a fair trial.

The court then remanded the matter for a new trial.

So how are jurors supposed to interpret judges’ confusing and complex jury instructions? The Barber jury got an unexpected bonus by having an attorney help them figure some of it out. It seems unfortunate, if not unproductive, that the standards of law apparently prohibit juries from learning about legal concepts that are crucial to the trial but unknown to them. It must have been difficult for Martin to tell them something like, “It’s concise gibberish and an elusive term of art.” No matter. Even if Martin had been able to give his fellow jury members a precise, non-elusive, non-gibberish explanation, he apparently deprived the defendant of a fair trial.

There’s got to be a meaningful lesson here.

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