James Otto Heiting featured in the National Law Journal
Heiting & Irwin is proud to announce that James Otto Heiting has been featured in the National Law Journal’s recent article “Hard Times Make for Reluctant, Sometimes Angry, Jurors.”
James Otto Heiting is the managing partner of Heiting & Irwin and has been practicing law since 1976. Mr. Heiting is admitted to practice before all courts of the state, the federal courts, the United States Court of Federal Claims, and the California and United States Supreme Courts. He is the only past President of the State Bar of California ever elected from the Inland Empire and handles civil litigation matters throughout California, recovering over $100 million for clients, dealing with wrongful death, serious injury, professional malpractice and transportation accidents. Also past President of Riverside’s County Bar, his firm has served the Inland Empire for over 30 years.
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Hard Times Make for Reluctant, Sometimes Angry, Jurors
It was supposed to be a simple damages trial involving a UPS driver seeking $1.8 million for injuries after a beer truck hit her while she was delivering a package. But when the lawyers began voir dire, members of the jury pool began to protest. “We pay too much,” one of them yelled. “There are too many lawsuits,” proclaimed another. Things devolved from there, according to lawyers for both sides, as additional prospective jurors joined in the catcalls. “One lady actually said: ‘You mean you want me to sit here two weeks, and at the end of the two weeks I’m supposed to reward her for me sitting here not getting paid?’ ” said Jim Heiting, the plaintiffs’ lawyer in the case.
Finally, Heiting, of Riverside, Calif.-based Heiting & Irwin, and Anheuser-Busch Cos. Inc. attorney James Reiss of Reiss & Johnson in Rancho Cucamonga, Calif., agreed to dismiss the entire panel. “I’ve never heard people make comments from the audience as if it’s a talk show,” Reiss said at the time, according to a transcript.
Part of the problem was the setting that day, Heiting said. The Riverside County, Calif., Superior Court’s civil caseload had so overwhelmed courthouse capacity that trials have spilled over into “these little courtrooms over at the elementary school,” he said. Far from basking in the majesty of the courthouse, prospective jurors crossed a grassy area from one building to another when called. The drinking fountains were at an adult’s knee-level. The judge, dressed as usual in his official robes, was sitting on a 10- by eight-foot wooden platform raised about six inches from the floor. He presided from behind a folding table in lieu of the traditional bench.
Even more than the physical challenges, the pressures on people in this struggling economy played a significant role in what happened that day, Heiting said.
It’s a refrain being heard across the country: As hard times stretch into their fourth year, people are becoming increasingly uptight about leaving their work to serve on a jury. Statistics are hard to come by — nobody, apparently, is measuring the phenomenon. Still, lawyers report anecdotally that more prospective jurors are asking to be excused for financial reasons. Many are self-employed and worried they’ll lose business. Others fear their employer will find it all too easy to replace them while they’re out on jury service — permanently, perhaps.
And although rare, in the most extreme cases prospective jurors have become incensed at the lawyers, the case and the entire judicial process.
“I spent the night pacing the hall wondering what I’m going to do with these people,” Heiting said of the prospective jurors in his case.
“It was obvious they didn’t want to be there, weren’t going to follow the law and were concerned about themselves. The economy plays a large part in this. People are out of work and they’re looking for work and are now asked to spend two weeks on a jury. It takes them out of their ability to look for work, commit to the job. People are scared.”
That it’s illegal for employers to punish workers for jury service doesn’t appear to count for much. “They’re more nervous about spending a week at trial, and their employer is saying, ‘You’ve got important stuff to do here,'” said Noelle Nelson, a trial consultant and psychologist in Los Angeles. “The employee is going: ‘Shoot, if I’m out a week, what if the temp is better than me?’ That’s scary. It’s scarier now than it was three years ago.”
Charles Douglas, founding partner of Douglas Leonard & Garvey in Concord, N.H., agreed. “Missing a week of work could mean missing work entirely,” he said. “And in this economy, they know that jobs aren’t plentiful, so they don’t take risks.”
Douglas, a former justice of the New Hampshire Supreme Court, said that he and his law partners have found judges more accepting of the financial hardships raised by prospective jurors. Such hardships are real, he said — not the traditional excuses by jurors who just don’t want to serve on a jury. Lawyers recognize that a prospective juror who just got a new job after being out of work for 10 months is not worth selecting if he’s not going to be focused on the case, he added.
Particularly troubled are people who work in small businesses or are self-employed, said Mark Sisti of the Sisti Law Offices in Chichester, N.H. “If you lose a customer in this climate, it’s a real loss,” he said.
Employees also are feeling pressure. According to a U.S. Bureau of Labor Statistics’ Employee Benefits Survey last year, 72 percent of employers offered paid leave for jury service. Greg Hurley, an analyst at the Center for Jury Services at the National Center for State Courts, said the bureau’s figure appeared “in line” with the nationwide trend,” although he acknowledged that his organization doesn’t keep comparative statistics.
He said some states, such as Massachusetts and Connecticut, require employers to pay their employees who serve as jurors — but certainly not all.
Gregory Smith, a solo practitioner in Beverly Hills, Calif., who said he has handled more than 70 trials in his career, put the figure much lower. About 90 percent of individuals on an initial juror list are not getting paid, he asserted. “That’s definitely a trend going on because we used to see a lot more jurors getting paid,” he said. “We’re not seeing that anymore.”
That means that most people already have a lot on their minds before being called for jury service. About 55 percent of Americans have suffered from various economic hardships, such as missed mortgage payments or unemployment, during the recession, according to a Pew Research Center study released on Sept. 24. Of those, 60 percent had to withdraw money from savings or retirement to pay the bills, the study found.
Nelson, the trial consultant, said she’s advised some of her clients to settle cases that might strain jurors’ sympathy. “If someone has a finger lopped off, that might have been traumatic, but they’re not a concert pianist or surgeon,” she said. “The jurors are much less empathetic than they would’ve been a few years ago.”
In some cases, people have lashed out at the lawyers. Last year, Smith ran across an angry group of prospective jurors in a case he brought on behalf of a deputy who sued the Los Angeles County Sheriff’s Department after his supervisor allegedly sexually harassed him. “In this particular case, not only did we get quite a few more excuses than we normally get, but we had some very belligerent jurors who were very argumentative, loud and resentful that they had to be there,” Smith said. “When one of them became belligerent, it gave more confidence to the others.”
The trouble started when three men in their 50s — all self-employed — began to talk back to the lawyers during voir dire. The trial was expected to last 10 days. When Smith told them that he understood they could face a financial hardship, they retorted: “How can you understand? You don’t know anything. You’re a lawyer. You don’t understand our problems.” They told Smith they didn’t believe he should have brought the suit and that “they had other things to do and were too busy to be brought into this process.”
Others started to chirp in, listing excuses like post-traumatic stress disorder and bringing in letters from their doctors, he said. “Virtually nobody wanted to sit in the trial. Everybody was trying to get out using excuses.”
In the end, he and the county’s lawyer, Nohemi Gutierrez Ferguson, a partner at Gutierrez Preciado & House in Pasadena, Calif., waived the jury in favor of a bench trial.
In the UPS driver’s case, dismissing the jury panel has meant months of waiting for trial to begin. So far, Heiting said, no date has been scheduled for jury selection, but voir dire is likely to be held at the elementary school again. “Am I feeling a little trepidatious?” Heiting said. “Yes.”