In this movie, the judge stops proceedings at one point and polls the jurors on their position at present…without hearing the any testimony of the injured parties!
Is this typical courtroom procedure? Heck, doesn’t the plaintiff get a chance to speak their peace? Seems to me like an obstruction of justice.
“They’re coming to take me away ha-ha, ho-ho, hee-hee, to the funny farm where life is beautiful all the time… :)” - Napoleon IV
I haven’t seen the movie… but what you describe doesn’t seem remotely possible in real life.
The venire, the jury pool, may be questioned before being selected as jurors, to ensure an impartial jury.
Once the jury is impanelled, they are not permitted to discuss the case with anyone, nor even amongst themselves, until the presentation of evidence is complete and they have been given the judge’s charge on the law.
It is possible that the jury may be asked questions during the proceedings if there is an allegation of improper influence. For example, let’s assumew the jury’s been sworn, and the parties have given their opening statements, and then the jury is sent home for the night. If one juror immediately researches the history of the parties, and returns the next morning and announces to the some of the rest of the jurors that one of the corporations has been previously fined millions of dollars by the EPA for previous chemical dumping… and the attorney for that company becomes aware of this… the judge might ask the jury members if they heard the news, and if it affected their ability to be impartial. Based on the results of that, he might call a mistrial, or he might simply dismiss the offending juror and replace him with an alternate.
In no event would he ask the jurors how the felt thus far, and then continue the trial.
However, it is possible he could send the case to the jury without hearing testimony from the injured parties. Your question seems to suggest he stopped the trial, polled the jury, and then continued, rather than sending the jury to deliberate. This would never happen.
But the testimony of the injured parties might not be relevant. I have no idea what the issues of the case were, except a faint recollection that it involved dumping toxic chemicals. If the injured parties couldn’t testify to any direct knowledge of the dumping, for example, the judge may have chosen to conduct a bifurcated trial. That is, the jury first would hear evidence only on the issue of liability. If they found that the company had dumped chemicals, then and only then would they hear evidence on what damage those chemicals might have done.
Why separate the issues like that? Because juries often will hear heart-rending stories of illness and death, and decide they want to punish someone. But the issue if liability should be decided on the facts, not out of a sense of outrage that someone is hurt and therefore someone else will pay.
This is supposition on my part; I have no idea if bifurcated trials are permitted in such civil matters in whatever jurisdiction this took place.
I can tell you that in Virginia, we permit bifurcated criminal trials when previous criminal convictions are an element of the instant offense. In other words, driving drunk with two previous DWI convictions is a more serious crime than driving drunk with no previous convictions. But if a jury hears that the defendant has previous convictions, they might convict him for the crime not because the evidence is strong enough, but because they think, “Hey, he did it before, he probably did it this time, too.” That’s not a fair inference for the jury to make. To prevent this, the defendant will often stipulate his priors, so that the jury never hears them. But if he wishes to contest them for some reason, the jury first hears the evidence of the current DWI charge. If they come back with a conviction, then and only then do they hear evidence of his prior convictions.
Now, as I type this, one other scenario comes to mind. Some companies, in an effort to judge their potenial exposure, will have a “mock trial” on the issues. They’ll engage the services of a retired judge, lawyers for both sides, and hire a panel to be a jury, and run through the trial. This will tell them if they should fight or settle the real claim.
In such a circumstance, I can easily see the mock jurors being “polled” at various stages of the “trial” to determine what parts swayed what people.
The key word here, though, is “mock”.
Hope all this helps!
The scenario described in the OP did indeed happen in real life, over the vehement objections of Jan Schlichtmann, attorney for the plaintiffs.
A quick summary: The case concerned a number of children who had been sickened, injured or died allegedly as a result of drinking water that had been contaminated by the two defendants, W.R. Grace & Co and Beatrice Foods. Plaintiffs asserted that they had dumped toxic chemicals on their land, which had then leaked into the goundwater and created a ‘leukemia cluster’ in the nearby town of Woburn, Mass.
Schlichtmann decided that putting the victims’ families on the witness stand at the end of the trial would be best, since their testimony would then be fresh in the minds of the jurors when they went to deliberate. So, he started with the scientific evidence, attempting to demonstrate that chemicals could have traveled from the alleged dumping sites to Woburn’s city wells (there was more, but I’m simplifying).
At the conclusion of the scientific evidence, the judge opted, probably at the prompting of Beatrice’s attorney, Jerome Facher, that the jury should be polled about whether they believed that the chemicals did in fact leak from the two plants into the groundwater and when it had occurred. Only if the jury believed the evidence put forth so far would the trial continue. Ostensibly, the judge was trying to speed the process along and get the suit dropped if it turned out the jury thought that there was no way for the chemicals to have reached the wells.
The judge submitted a four-question questionnaire to the jury. The jury’s responses resulted in Beatrice getting dropped from the suit. The suit continued against Grace. As I recall, the judge was later criticized and censured for abusing his discretion.
To read more about Schlichtmann and his work, visit his home page.
Bricker and MaxTorque, that’s interesting about a “bifurcated” trial and how the judge can decide if a case should proceed. But, I don’t totally see how justice can be served! That’s like saying “Well, Judge, if my opponent hasn’t convinced the jury by half-time, why bother playing the second half of the game?”
Also, it sounds odd that the plaintiff’s attorney could have had the families testify first…not last…and THAT would have been ok. Sounds slanted in favor of the defendant, doesn’t it?
Not familiar with general court proceedings, I didn’t fully understand what was going on in “A Civil Action”. I guess, the movie was trying to show that perhaps “Jan” goofed by just being a overzealous, ambulance chaser inexperienced with greater matters? He just saw the “deep pockets” he could try and dip into (IMHO) until towards the end where it became personal because he lost everything.
I must ask: After gathering sufficient evidence about the chemicals leaching from both sites, I wonder if it have been a better strategy to have gone after each company individually? I guess you’d end up in a fingerpointing contest, perhaps, with the jury unsure if the blame can be pinned on just one corp? OTOH, this fingerpointing would, in theory, allow the truth to surface that both companies were to blame.
“They’re coming to take me away ha-ha, ho-ho, hee-hee, to the funny farm where life is beautiful all the time… :)” - Napoleon IV
Jinx -
However, you also run the risk of the jury not being able to find enough evidence that EITHER company was to blame. Sort of the “well, they both blame each other, so who knows” kinda thing. Sort of dangerous when you think about it…the families could be left with nothing. Also, no one really knew what they were doing back then…this was one of the first cases on environmental matters. Perhaps today they WOULD have been tried separately.
I also agree with your assessment of the movie. Schlichtmann was…naive about how much the case would entail, IMO. (Random note: when the movie came out, EPA flipped. Was worried about how they’d be portrayed…) Also, keep in mind…the government HATES cases like this. EPA wants the companies to cooperate and pay up for cleanup. Hard to do when yer being sued. And for those who are interested: Schlichtmann is back in environmental cases. Now it’s Toms River, NJ I believe. And this time he’s not as confrontational as in Woburn…be interesting to see how it turns out.
Winner, SDMB’s Biggest Chat Addict
“Only two things that’ll soothe my soul - cold beer and remote control.”
Oh, forgot to comment on this:
I’m not sure what it’s called…(any lawyers/law students care to help me out?), but this can be done by hte defense in a criminal trial. If they feel the prosecution has not put on a good enough case, they can opt to call for a decision before putting on any type of defense.
I think you’re talking about a directed verdict. That’s where the judge decides, essentially, that the prosecution’s/plaintif’s case sucks and the trial shouldn’t even continue. I think I like the idea of a bifurcated trial. Bleeding-heart stories of misery and woe (or allegations of racism) can certainly cause the jury to decide that someone must be punished, even if the evidence is just not there. Bifurcated trials are a good way to prevent these kind of injustices. Only if the defendant is actually at fault is the degree of responsability discussed.
–It was recently discovered that research causes cancer in rats.
Jinx wrote
Yes, and that is the unfairness in this particular case. It is one thing for the judge to announce in advance that a trial will be bifurcated (with a jury to decide first the issue of liability, and then, if liability is established, to proceed with trial on the issue of damages.
It is another thing for a judge to spring that procedure on an attorney in the middle of a trial. (The film portayed the bifurcation as a mid-trial surprise. I don’t know if that’s what happened in real life.)
However, in fairness, under either scenario (bifurcated or not) you must establish proof of liability (i.e., proof that the defendant in fact negligently caused the problem. At the point in the trial where the judge decided to bifurcate, the jury had heard all the evidence it was going to hear on the issue of liability. Any additional testimony would have been on the issue of damages (i.e. how much harm was caused by the negligence of the defendant).
Based on the testimony presented, a jury determined that there was not sufficient evidence that Beatrice had caused the problem. Now Beatrice may have actually caused the problem, but unless you have proof of that, you are going to lose.
Yes, it would have been more fair if the plaintiff’s attorney had known in advance that there would be a bifurcation, but either way, the plaintiff’s attorney still has to prove liability, and should not rely on the sad personal stories of the injured parties to sway a jury.
Jinx said:
Perhaps a better analogy is to a baseball game… if the visiting team is ahead on points after the home team has finished the top of the ninth inning, they don’t play the bottom half. Why should they? They can’t lose points; they’ve already won.
So, too, with the concept of a directed verdict. The plaintiff must, in his case-in-chief, establish sufficient facts for the fact-finder to find negligence. If he doesn’t, the defense has already won. If the judge finds that no reasonable jury, based on the testimony presented, could ever find negligence, he may direct a verdict for the defendant at the close of the plaintiff’s case.
Somewhat related is the judgment non obstante veredicto, or “judgment not withstanding the verdict.” It’s often called JNOV; for some reason the acronym is derived from the Latin, not the English, form.
This is when the judge disregards the jury’s verdict and enters a judgment for the other party. Again, it’s predicated on the notion that no reasonable jury could have found as they did.
There’s another thread, somewhere here, where we got into deep discussions of the difference between summary judgment (F. Rule 56) and a motion to dismiss for faliure to state a claim (F. Rule 12(b)(6)). I’m too lazy to find the link, but if you’re interested, the SDMB search engine will undoubtedly help… 
Jan Schlichtmann took a gamble that didn’t pay off- he hoped that his scientific evidence (supposedly proving that W.R. Grace poisoned the water supply and caused children to die of cancer) and his emotional appeals to the jury (weeping mothers in the jury box, holding up pictures of their dear departed kids) could be presented to the jury all in one sitting. If he had gotten his way, he might well have won. After all, MOST jurors would be emotionally swayed by seeing crying moms, and would be inclined to give them some money at the expense of a big corporation.
The defense attorneys didn’t want that to happen, so they convinced the judge to have the jury vote first on whether or not the scientific case had been made. After all, if Schlictman DIDN’T have solid scientific proof that W.R. GRace had caused the cancer, there was no point in putting the weeping moms onm the stand, was there? (The weeping Moms would only be relevant IF damages came into play.)
Whether this was the right procedure in this particular case is arguable. But this practice is far from unheard of.
Not that this has anything to do with the OP, but you reversed “visting” and “home” teams and baseball teams don’t score “points”, but “runs.”
The Robert Duvall character in the film (who always was listening to Red Sox games on the radio) would have pointed it out also. 
Although I haven’t seen the movie, I have read a great deal about the case. My impression is that Mr. Schlichtmann is an ambulance chaser looking to profit by blaming kids’ cancers on whoever had the deepest pockets.
His case had serious legal obstacles from the outset, but he was hoping to put distraught parents in front of sympathetic jurors, and get a cut of the action. The factual obstacles to his case were:
It’s not at all clear that the cancer “cluster” was anything more than a statistical fluke.
The town of Woburn, with tannery as a chief industry, was a chemical dumping ground for centuries before Grace set up shop. Before the well was dug (and before Grace was there), an engineer warned the city not to dig in that location because the water was too polluted.
Grace was located on the opposite side of a river from the well, and credible scientists have said that the chemicals from Grace could not have shown up at the well, especially in the time between Grace’s dumping and the cancers.
The chemicals Grace dumped have not been linked to cancer. There have been some studies trying to show a link, but the data was inconclusive, and since the trial it seems much more doubtful that there is one.
Why did he try to sue a large corporation instead of the small local industries who had a better chance of causing any problems? Deep pockets.
Also read:
Wall Street Journal Article
Michael Fumento
On a related note, Grace is now the bad guy in my hometown of Libby, Montana as a result of asbestos released by their vermiculite mining operation. Several hundred lawsuits have been filed, and everyone who had a friend of a friend of a cousin of anyone who has ever lived in Libby is trying to get a piece of the action. The lawyers smell blood, the EPA has established a new office there, and the real estate market is kaputz. Even the Seattle Post-Intelligencer is carrying the story. To read their version, you’d think everyone within a 100 mile radius of Libby, Valley of Death was dead or dying. We’re dropping like flies! Sue now, while you can still breathe!
Grace has pledged and donated hundreds of thousands of dollars to the local hospital for screening and treatment,(which probably saved the hospital from financial death) and has settled many of the lawsuits with huge sums. Everyone perks up when the money is mentioned.
Rick Palagi is the big kahuna Chief Executive Officer at the hospital. He has announced that $6.8 million will be needed to screen and treat the 4,000 residents who, in his estimate, might have asbestos-related disease. Odd, as there are only about 2500 people in the entire town and surrounding area, and the population was lower than that when the mine was still in operation.
I don’t mean to belittle the suffering of those who have become ill or died because of this, but I’m tired of hearing about the money and the Big Evil Company. How come nobody seemed to care before there was cash involved? Deep pockets, indeed.
Whoops. Mea culpa. You’re right, indeed.
sigh No, Grace was sued because that is standard policy. You group all the companies together, and anyone who has ever polluted at a site is liable for any consequences of said pollution at the site. I do agree that the Woburn case was handled poorly. I’ve said that. BUT, that does not negate the fact that Grace and Beatrice Foods had a responsibility to clean up the pollution that they caused or were aware of. TCE is a known pollutant. It was in the wells at levels higher than normal. IIRC, EPA went after everyone who had ever polluted that river. I place more value on that than the lawsuit.
Neenah - I agree it’s sad everyone comes out for the money. But the fact is, Grace is a known polluter. The Woburn case, the case in Montana, there’s a site in New Jersey that’s one of the worst and most non-compliant in the Federal facilities area… They’re an easy target. And having gone through the legal spotlight once, Grace is more willing to settle. I would venture, however, that this Montana case is NOT the norm at polluted sites across the country. Far from it. And a point of clarification, which I may be wrong on: EPA has had a Montana office for a few years. They MAY have recently set up an on-site office for the project menager and the community involvement coordinator. I would have to check.
In the interest of fairness, a disclosure: I am a contractor for EPA, so I tend to see their side fairly easily, since I have to help them report it. However, I do believe EPA can, and has made mistakes. (Oh, trust me on this one.)
Winner, SDMB’s Biggest Chat Addict
“Only two things that’ll soothe my soul - cold beer and remote control.”
astorian wrote:
Hindsight is 20/20, but Schlichtmann played it wrong. What you should do in a case like that is “sandwich” your evidence. Open the trial with some weeping mom testimony, then present some scientific proof, then close your case with some more weeping mom testimony.
This strategy would have prevented the sort of mid-trial bifurcation that occurred (or at least would have made it more likely that the jury would go with you on the liability issue, since they would have already heard some weeping mom testimony).
I shouldn’t second guess the guy, though. It may not have occurred to Schlichtmann that the defense might try to play this bifurcation angle. (The movie certainly made it look like it was a shock to him.) Lord knows he would have had a lot of things on his mind, and a lot of balls in the air getting ready for a trial like that one. In the absence of an Order in advance of the trial requiring bifurcation, I don’t know that the risk of bifurcation would have occurred to me either. That’s why I think it was unfair for the judge to allow bifurcation to be “sprung” on the plaintiffs that way.
Falcon-I didn’t mean to imply that this was the EPA’s first foray into Montana. There’s a field office in Helena, but I’m not sure how long it’s been there. Quite a while, I think. I just meant that they have only recently set up shop in Libby to deal with the asbestos issue. I also didn’t mean to imply this was the first time Libby has come to the attention of the EPA. We’ve had a superfund cleanup site since 1983 ( I think)to remove oil and creosote left by the lumber mill from the groundwater.
neenah -
No problem. Sorry if I sounded snippy in my post as well. Actually, the Libby site just came up in the teleconference I just sat in on…found out why they need so many X-rays. Asbestos travels, so they need to screen everyone who MIGHT have had contact with it. (Also, I think they’re doing a huge CYA on this one. EPA has known about this problem for years…there was never a huge site attached to it until now.) Oh, and as an amusement for you, neenah? Latest estimate today from EPA/ATSDR was that they would need over 6,000 x-rays. Bet the hospital loves that!!!
20/20 is supposedly going to do a report at the end of the month on it. From hearing all the facts…this is not EPA’s finest hour on this one. Oh, and random question from my co-worker: How big is that office in Libby? We were picturing a little kiosk like you see in the mall. Probably all they can AFFORD right now…
Well, it’s not QUITE like a kiosk in a mall, because there is no mall for about 100 miles. Currently, they’re in a little brick building about halfway down the main street in town. Small building, 700 square feet or so.