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Bloom & Buell's

 

TRUTH, OR CONSEQUENCES?

A long-practiced and legally supported habit of Massachusetts judges -- some would say a bad habit -- has just been brought to an end by a state Supreme Judicial Court ruling that, in effect, says that if a jury asks a civil question, it deserves a civil answer.

Apart from raising the level of courtesy in the court, a desirable end all by itself, to be sure, the SJC ruling is bound to change jury awards and very probably increase them.

The decision in a personal injury case involving a construction firm and a painter who fell off a six-foot-high scaffold says that from now on a jury must be told what the actual effect of their decision will be.

Until now, a judge could tell a jury to just answer the questions on the verdict form and not to worry about how one would affect the other.

Briefly, jurors in the case had asked the judge what would happen to the money they were thinking of awarding the plaintiffs after they decided who should carry how much blame.

Apparently they had settled on how much to give the injured painter and his two relatives when it occurred to some of them that the next question on the verdict form could make a difference.

The next question dealt with how much each party's percentage of the negligence was. The jury ended up ruling that the painter's share of negligence was 55 percent and that of the general contractor 45 percent, meaning that the painter and his two relatives got nothing, in keeping with state law.

It is not recorded what the jurors thought of the effect this apportioning had on their award of money or whether they even learned that such an allotting of blame effectively wiped out the award.

But the SJC ruling says that from now on the jurors must be told. The case is going back for a new trial.

Lawyers for the painter had urged the judge to tell the jurors -- he was not forbidden to do so -- but the judge declined. Until this decision, it was up to the judge's discretion. But, says the SJC, "The fact that a matter is within the judge's discretion, however, does not mean it is not subject to review." So much for the old discretion.

Jurors are not always the fact-finding automata that some lawyers want them to be. If you get 12 rational adults on a case, there are bound to be some probing questions and insights. There was the jury in a medical malpractice suit who clearly indicated by their question that they were wondering about where the award money might end up. They asked whether they could make an order that if the damaged child were to die, the remaining award money should go to medical research. Alas, the judge had to tell them, that was not in their power.

But the SJC ruling raises the interesting possibility that from now on the verdict slips might have questions listed in a different order. In the case involving the painter, Question 5 asked the jurors how much money would compensate the plaintiffs for their pain and suffering. Question 6 asked the jury to apportion negligence.

Had the questions been reversed, the instructions could have read something like this: "If the answer to Question 5 is that the plaintiff was more than 50 percent negligent, do not continue to Question 6: How much would compensate the plaintiffs, etc."