An Albuquerque physician emailed me with a question about medical malpractice.
A similar question could be asked about every kind of litigation involving advanced technology or specialized knowledge.
The physician wrote: “The law says that a plaintiff is entitled to ‘a jury of his/her peers.’ But most medical malpractice cases which make it to trial are incredibly complex (the obvious ones are usually settled out of court) and the issues are only understandable to (other) physicians. So I guess my question is: how are laymen physicians’ ‘peers’?”
No legal phrase in common usage can claim a longer lineage than “jury of one’s peers.” It derives from the Magna Carta, the Great Charter, signed under duress by King John at Runnymede over 800 ago. A revised version was signed by his son and successor, King Henry III, in 1225.
Henry didn’t act out of love for democracy or commitment to the rule of law. He extended privileges to the barons in exchange for their help in suppressing a rebellion.
The 1225 version, as traditionally translated from the Latin, provided that “no free man” could be arrested, or have his lands seized, or be outlawed, “except by the lawful judgment of his peers. …” That’s the origin of our jury of one’s peers.
There was a catch. Most inhabitants of feudal England weren’t free and half weren’t men. The Magna Carta is justly celebrated as a first step toward a legal system based on the concept of universal rights, but it was no more than that.
Still, that bit about peers retains remarkable resonance. In 1999, the New Mexico Court of Appeals claimed to have located a “constitutional right … to be tried by a jury of his or her peers, see N.M. Const., Art. II, § 12.” But if you follow the citation, you won’t find the word “peers.” It doesn’t appear in the federal Constitution, either.
Instead, a federal statute declares that litigants have the right to juries “selected at random from a fair cross section of the community.” Pursuing the same outcome, New Mexico state courts randomly draw their jurors from driving license, income tax and voting records.
A fair cross section of the community looks like the representative sample assembled by a conscientious pollster. “Peers,” when used to describe the makeup of juries today, means more or less everybody.
A random group of 12 citizens will have a difficult time understanding the intricate medical issues arising in a complicated medical malpractice case. Lawyers know this, of course, and it dictates the way they present their cases.
Every trial involving any field of specialized knowledge almost inevitably becomes a battle of the experts. Each side brings in expert witnesses whose job is to make complex technical issues understandable to lay jurors. The good ones are as smooth and plausible as TED Talk presenters.
In practice, this means the jurors don’t directly evaluate what the defendant did. Instead, they evaluate the expert witnesses’ competing representations of it. That’s an important distinction. There is always, unavoidably, a difference between reality and its courtroom representation.
Each set of lawyers presents the jurors with a model of the case, in the way architects in a design competition present models of their proposed buildings. Jurors study the models, not reality itself.
Lay jurors aren’t qualified to judge a physician’s practice of medicine. But they have all the qualifications necessary to rank the persuasiveness of competing courtroom presentations.
There are two ways of formulating the ultimate question juries answer in any tort case. Sticking with the example of medical malpractice, one could ask whether the doctor did something wrong. That, I think, was what my physician correspondent had in mind.
But the other way of formulating the question gets closer to what the jury really does, in my opinion. That alternative formula is: Does the plaintiff deserve compensation?
“Deserve” in this context is a squishy concept. It can mean many different things, even 12 different things to 12 different people drawn from a fair cross section of the community.
Lawyers talk about sympathetic plaintiffs, the ones whose stories tug at your heartstrings. Juries tend to rule in favor of sympathetic plaintiffs, which is another way of saying they tend to rule against the unsympathetic. Plaintiffs are judged, too.
The medical malpractice system has been subject to decades of withering criticism, all of it justified when taken on its own terms. That it nonetheless persists tells us it serves practical purposes. Among other things, it’s our government’s way of directing relief to injured individuals who can convince a jury (of somebody’s peers) that they deserve it.
Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at email@example.com.