We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state.

A surgeon sits at the defense table on the first day of her malpractice trial. Looking at a jury that includes a retired data entry clerk, a postal worker, a college student, a housewife, a motorcycle mechanic and an accountant – but no doctors – she whispers to her attorney, “This is not a jury of my peers!”

An internist stands next to his attorney as the verdict in his malpractice case is read out. A jury that included a kindergarten teacher, a FedEx truck driver, an unemployed man, a hair stylist, a librarian and an airline machinist – but no doctors – has just found substantial liability. He asks his attorney, “Why can’t we appeal? What about my constitutional right to a jury of my peers?”

Both doctors are certain that they are right, but both are actually mistaken about the law.

A “jury of your peers” is one of the least understood legal concepts, so let’s take a look at it.

Like “separation of church and state,” it is a phrase that appears nowhere in the Constitution.

The Constitution addresses juries in just three places: Article II provides that “the trial of all crimes, except in cases of impeachment, shall be by jury”, the 6^th Amendment provides for jury trials in criminal cases, and the 7^th Amendment preserves the right to a jury in a civil trial with damages above a minimum value.

Who actually sits on those juries is barely touched upon. Here is what the 6^th Amendment requires: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”

The key word here is “impartial.”

The general qualifier is that the jury be local, to prevent either side shipping in jurors who would favor their side – while excluding those who best know a given area. But the only qualifier pertaining specifically to the decision-making function of the jury – why the jurors are there – is that it must be impartial.

The Founders could have written in specifics about juror qualifications, including a requirement that they be educated to a certain degree, members of the same profession as the defendant, or have personal knowledge about the matter being tried. They didn’t. They only required that cases proceed on a foothold of fairness.

The answer to what “peer” was intended to mean is any ordinary citizen who can make a fair judgment.

Now, our two defendant doctors might counter that in the 18^th century the jury pool was already very limited, mostly to white men who owned property, and so excluded many community members. But, back then, many property-owning white men were not literate at all or barely so. Yet there was no requirement that a juror meet any educational test to sit on any jury, including one that could involve complicated issues.

That a jury should be a sampling of the community is best demonstrated by how it may not be limited. This goes back to the concept that litigants have the right to be judged by a jury using nondiscriminatory criteria and processes, something that cannot occur if there is systematic exclusion of groups that make up a community’s population.

If you ever watched Law and Order you probably already know that during voir dire (the questioning of jurors during jury selection) attorneys cannot use peremptory challenges (challenges to jurors for no reason at all) solely to keep a given race or gender off the jury. But that is the floor and courts are increasingly raising the ceiling.

For example, in a 2010 case in New York, the judge held that a jury of one’s peers means a “broad spectrum of people” in the county. The judge found it was unconstitutional to challenge a juror simply because he was a hunter in a case in which the defendant was accused of shooting another hunter. The defendant claimed the shooting was accidental. Because the prosecutor removed three jurors who hunted from the jury panel, the judge declared a mistrial based on the systematic exclusion of a class of persons that represented the defendant’s peers- not because they were hunters- but because they were community members.

This does not mean that a hunter gets hunters guaranteed on their jury – it means that if hunters are members of the community – they cannot be excluded just because they are hunters.

To our two defendant doctors, this means they are not guaranteed that a surgeon or an internist, or any doctor at all, be seated on their jury. But it also means that if the plaintiff tried to bar all doctors solely because they were doctors that would be impermissible.

Now, you may say “But doctors usually get excluded from medical malpractices cases.”

The answer is that they are not excluded because they are doctors – they are excluded because being doctors presents a complicating issue. Doctors likely honestly state during voir dire that they could not exclude what they already know about medicine from their judgment and base their verdict solely on the facts as presented in the case.

Neither the plaintiff nor the defense wants an “unsworn expert” in the jury room. Neither side wants such an “unsworn expert” spinning their own version of the facts and perceived as an opinion leader by other jurors and. So, the doctor is discharged from jury duty for actual cause, not peremptorily just because he holds a medical degree.

So where does this leave us?

Jury selection now focuses on getting a cross-section of a community. Such members may not be a litigant’s professional or socio-economic “peers.” However, courts have responded to that latter point by holding that a litigant is not entitled to a jury that is composed of his or her own group or one tailored to fit the particular matter to be tried, but only to one capable of being fair.

In summary: A “jury of one’s peers” requires a cross-section of the community capable of hearing the case fairly. Defendants in specialized professions are not guaranteed a panel of similar professionals but members of that profession cannot be excluded solely because of that.

*** Medical Justice Notes: [The vast majority of physician defendants would probably want to have a physician serve on their jury. The law does not mandate that outcome, though.]