On Tuesday I wrote about the Mississippi Supreme Court’s decision in Merchant v. Forest Family Practice Clinic. The Court reversed a defense verdict in a medical malpractice case and remanded the case for a new trial.

This is not really the subject of this post, but it’s worth noting that historically the Court does not reverse many defense verdicts, as mentioned in this 2009 post.

I think this case is a big deal not because of the ruling, but because it provides a rare look into the jury’s deliberations. Most of the time, you don’t learn what was said during deliberations. To me, this case confirms something that I have been suspecting: some juries are not limiting deliberations to the evidence and the trial court’s instructions.

I’m making this case Exhibit “1” in support of my argument that Mississippi should adopt juror reforms similar to those adopted in Michigan. Granted the Michigan reforms would not fix a lying juror. But this is an example of a case where we know a jury did not reach its decision based on the evidence and the instructions of law. This is indicative of a problem in this system.

Incidentally, I have no idea whether a defense verdict was the right verdict in the case. But if it was, it was the right verdict for the wrong reasons.

We need jury verdicts that are the right verdict for the right reason. I believe that our current method of reading over 30 minutes of jury instructions at the end of the trial is inviting jurors to reach verdicts for the wrong reasons—reasons not guided by the evidence and instructions of law. I do not believe, however, that the Michigan reform will address a worrisome trend among ultra-conservative jurors.

I have conducted a lot of focus groups in the last few years. I am seeing two things that alarm me. First, some people aren’t getting what it means to decide a case based only on the evidence and the court’s instructions.

You see this in focus group deliberations where people start interjecting their personal experiences into deliberations. Old people who are know-it-alls are particularly prone to do this. These folks have a story they want to tell and by god, they are going to tell it.

An example is the man in the focus group who urged people to render a verdict a certain way because things “really slowed down” when he was in a rollover on I-55. It was not a roll-over case. Or a car wreck case. The guy’s story had nothing to do with what happened in the case. But he thought it was relevant to the decision.

Second, I am seeing a lot of ultra-conservative jurors who will not render a plaintiff verdict for negligent conduct. There is no area of practice where this trend is more pronounced than in medical malpractice cases against doctors.

The ultra-conservative jurors require admitted fault, intentional conduct or gross negligence to find for a plaintiff against a doctor. Simple negligence will not suffice, even though that is what the law is. They are like the juror in this case who think that personal injury lawyers keep taking money from their good doctors. In fact, a personal injury lawyer has better odds in a casino than with an ultra-conservative jury.

The ultra–conservative jurors are hard to identify in voir dire because like the juror in this case, they don’t say anything. They are the type of jurors who say they can be fair and don’t answer specific voir dire questions. This does not apply to all conservative jurors. But it applies to enough to make it an existing and growing issue.

What is the solution? I’m not sure. I have some ideas, but not the answer. I am interested in President Obama’s concept of health courts where medical malpractice cases are decided by persons—I’m not sure exactly who—who have specialized training. I might would support a program like this depending on who will be the decision makers in such a system. I believe that plaintiffs would have a better shot at winning under such a system in most Mississippi venues.

Best I can tell, the American Association of Justice stridently opposes health courts and any concept other than jury trials. I have to disagree with anyone who flatly rejects proposals to improve the justice system without hearing the specifics.

The justice system is like anything else. It can always be improved. We should be considering all proposals for how to improve the system until the day that we all agree that we are getting the right decision for the right reasons.