Jury Duty—The Selection Process

I reported for jury duty on February 26th, a Thursday. Over 225 people were summoned that day. The judge and attorneys came to the jury assembly room to explain a bit about the case and to weed out those with hardships. I wasn’t sure about our policy regarding jury duty so I couldn’t automatically opt out. Those remaining were then sent down to the courtroom and quizzed about pre-trial publicity. I remembered the case but knew nothing else. Since I wasn’t sure about the firm’s policy for jury duty I was told to come back the next day to fill out a questionnaire, which I did.

On Friday I returned to the courtroom. We had just been shortlisted for the California Department of Corrections mental health facilities project and the interview was to be the following week. I pleaded that our firm was going to be interviewed for a project for the CDCR the next week and I need to be there. No dice—fill out the questionnaire. The questionnaire was 12 pages long and asked several questions about background, education, employment and views on certain items-like attorneys. One question asked was “Do you or anyone you know have, or ever had, a mental disease or disorder?” My response was “Can you ask this question under HIPPA?” I thought for sure that would get me off the jury. It didn’t. After filling out the questionnaire we were directed to come back on Tuesday morning March 3rd for voir dire.

After sending an email to one member of our HR team and not receiving an answer, I called another HR representative on Tuesday morning on my way to Court. I had read our policy which said that we had a limit of 80 hours or two weeks, but it mentioned something about partial weeks that I didn’t understand. The HR person first said it was 80 hours—period. I asked about the partial weeks exception but she was unsure. I thought I had just gotten out of jury service. In the courtroom everyone sat in the gallery while the clerk called up 18 people to sit in the box to begin voir dire. I was waiting for the judge to bring up hardship when I received a call from the HR rep who told me that if the trial does not last full weeks (less than five days a week) the firm would continue to pay my salary. Since the judge had told us that the trial would be held three and half days a week, I would be paid and could not claim financial hardship. Right after lunch the judge asked about financial hardship which eliminated several people, including one sitting in the twelfth chair. My name was the next called. The attorneys went through voir dire all afternoon and eliminated several for cause. When they got to me I was asked about my job, the type of projects I worked on (when I said I designed hospitals there was a twitter of awe throughout the courtroom—who knew?), my experience with the Design Review Commission (on which I sit), and what I knew about computers. My answer—“I don’t know how they work, just that they do.” The defense attorney noted that I had served on two previous juries before and had been the foreperson twice. He jokingly asked if I had campaigned for the position. By the end of the day they had gone questioned all 18 jurors and eliminated those for cause. The next step was preemptory challenges. The judge dismissed the jury for evening after reading the admonition about discussing the case with anyone. We were to return to court at 9:30 the next morning.

We filed back into the courtroom the Wednesday morning and checked in with the clerk, not showing up would mean that a bench warrant would have been filed by the Court. We sat in our designated seats and I’m sure each of us hoped that our names would be called. The plaintiffs had eight challenges as did the defense. Each used two challenges, eliminating those that appeared might have had difficulty in understanding the technical information or who had some preconceived notions about responsibility. With four excused, fourteen were left, 12 jurors and two alternates. The Court wanted four alternates so two more called and interviewed. The attorneys accepted the two alternates and by noon, there was a jury. I was Juror Number Twelve.

Here is a note from journal for that day:
_March 4, 2009
Well, somehow I made it onto the jury. I thought for sure I would be released, but then a part of me thought I would stay. Thank goodness they used preemptory challenges to eliminate a few of the jurors. They would have had a hard time following the evidence and would be a pain during deliberations. I wanted to thank them for their decisions. I can understand why they eliminated the guy that was into common sense and big picture—I couldn’t quite understand where he was coming from. The other one is a relative of a local attorney—so much for him.

They had opening arguments this afternoon. Mr. Mayer walked us thru the sequence of events. Mr. Sharp did not add much other than to clarify the differences. Mr. Smith set the stage for his version of responsibility and how the city is not liable. Seems like Wayne Bush is the guy that is being the focus. I watched Lisa Guthrie during Mr. Mayer’s opening, she was visibly shaken. It must be a hard day for her. I walked out of there with the impression that there is no way this is going to be easy. If it was, then we wouldn’t be here. Each attorney did a good job with their opening in that it was balanced.

It will be an interesting journey._

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Jury Duty - The Case Part III

Here are some entries from my journal that I was writing at the beginning of the trial.

March 6th

Today was a tedious day in court. A very poorly done reading of a deposition—the attorneys need to practice better and have their exhibits in order. They didn’t know how to use the overhead projector and were constantly moving pictures and turning them around. It was hard to follow and irritating as all get-out. I was not happy with Mr. Mayer today. The heat of the room, the darkened atmosphere and the moving pictures set off a migraine that is still not gone. I’m finding it interesting to watch the plaintiff build his case, but boy is it getting old. They keep going over the same facts over and over again with different witnesses. A few inconsistencies are coming up, but minor. And it’s getting boring. I want to say—get on with it—we know what happened on 31 March 06. But I can’t. Wayne Bush was on the stand today and I hope the pace picks up after the plaintiff meticulously tries to establish his case and portray the director of public works as an uncaring, ineffective, irresponsible party. It’s not working for me because I can see that he was doing what he thought was right with the resources that he had. But then I’m sure there will be more testimony that will make it clearer (or not) about the causation of this awful event. And I can see why this was brought to trial. I can also see that if the plaintiff makes its case it will mean changes to the SOP for a small town like Mill Valley. I guess this says a lot about litigation. A horrible tragedy occurs and someone has to be responsible and then all of the safeguards get put in place. If nothing else it will certainly show how important it is to say the right thing and not to promise anything.

Mr. Dudak—the field engineer—who first observed the slide was on the stand. He was dressed in a nice sport coat and tie. He had a terrible stutter which I imagine was made much worse because he was nervous. He was a believable witness, as is Mr. Bush. I can see how Mr. Bush is being very careful to not fall into any traps that Mr. Mayer is trying to set. And Mr. Smith is working hard at trying to proof that perhaps someone is mistaken. There was a wrestling match over who took one photograph and when it was taken today. I don’t remember when or if it was cited when put into evidence.. More will be revealed.

March 10, 2009

Today was another difficult day. Wayne Bush, the director of public works for the city of mill valley, got the flu over the weekend and it caused vertigo so he has to stay in bed. They had to rearrange the witness today and it caused us to waste about 2 and half hours of court time today. The first witness today was a relative of Lisa’s, a guy in the construction/road work business. Lisa is his wife’s aunt. He went to the site mid morning the day of the event. He described what the house and site looked like and helped with getting the mud off of the site. He described how atrocious the conditions were. They didn’t find Walt the first day, not until the second day and they had trouble getting his body out, his leg was trapped by some debris and they asked about amputation to get his body out. They also showed us picture of his body before they removed it from the site. It was difficult to make out what we were looking at, the second picture was easier to understand. His body was still covered in mud. It looked like he had fallen forward, perhaps he didn’t even see it coming. One arm was splayed up, the other down. They passed the photos around to the jury so they weren’t projected and Lisa didn’t have to see them. That was kind. I hope his passing was swift and painless.

The first witness after lunch recess was a civil engineer, Irving Schwartz. Bald man with a beard, looks like Uncle Leo in Seinfeld. As he was describing what they had surveyed and how they got the information on the slide area. His smile seemed like a sneer and it seemed inappropriate for what he was describing. The plaintiff still needs to do a better job of their visuals, but it was much better than on Friday which was about to send me over the edge.

After the first civil engineer we had a second one who specialty was hydrology. He had wiry curly brown hair, glasses and a beard. He wore a sport court. He reminded me a bit of a cross between RM and WV. For an engineer he was well spoken and did a really good job of leading the jury through the technical information of run-off and hydrology modeling. He even used a PowerPoint and did a good job. He was an expert witness. I can see where the plaintiff is trying to lead us and I’m not sure I want to go there with them yet, but there is a long way to go and much more information to get and digest. I actually find it interesting but I know the other jurors are struggling with some of the technical information.

Lisa was wearing a lovely teal colored top and it looked very nice on her with her grey hair and skin. She wears it well. The attorneys were all rather blasé. Al Mayer, a short man, wore a dark blue suit with a periwinkle shirt. He had grey hair. He can also get a bit snippy. Mr. Smith, is a tall man, with the traditional bald pattern. He does a good job of being respectful to witnesses although he does get a bit edgy when Mr. Mayer objects to what he asking. The second chair for the defense is a young woman with long brown hair and bangs. She is constantly taking notes and watching the jury.

We now have a refrigerator and a microwave in the jury room as well as a coffee maker. Someone always brings in a treat of some kind.

March 13th

This has been a long stressful week. I had no idea that doing jury duty would be so very tiring. But six hours of active listening to a lot of technical jargon really takes a lot out of you. This week we had almost a full day from the hydrologist, and over a full day from a civil engineer/geotechnical engineer. This morning we had another civil engineer who was testifying about Mr. Bush and the standard of care. Still no clue what the right answer is and a lot of testimony to come. But I would guess that Mr. Bush’s job is in jeopardy.
The theatrics of the attorneys, particularly Mr. Mayer is a little much. He gets snippy, self-righteous and even disrespectful at times. That does not play well with me at all—he is walking a very fine line. It will be interesting to see how he does when he cross-examines the defense witnesses.

We also went on a site visit to the slide and the Guthrie home. The site was much steeper than it appeared on the model. Hillside Avenue is very narrow and winding. And the homes built around there are on slopes that are way too steep. It was easy to see the landslide area. But there was also a slope so that there shouldn’t be water standing if it was raining heavily.

The house was eerie and sad. It was destroyed. The bedroom as the back of the house was totally gone, the roof caved in the, the floor collapsed. The toilet paper was still in the holder. There was a muddy boot, and toiletries from the medicine cabinet strewn all over the ruins. The mirror over the sink was off the wall and broken. The house was covered with mud. It must have been quite lovely at one time. Don’t know how much they were able to get out. Most everything was gone, but it was really sad. That house should never of been on that location over a culvert or at the bottom of a ravine. They are really lucky nothing had ever happened—not just a slide, but water running down that ravine and not getting blocked up. There was really very little outdoor living space other than the deck. The rest of the property was way too steep to be usable—beautiful but not usable.

Down next to the culvert, on the rocks right before the culvert, at the place that Walter Guthrie died, there was a butterfly alight on the rocks—an orange and black butterfly—a monarch I think. It stayed there in the sun for quite a while. I first saw it on one side of the house and it was still there after I had walked around to the other side of the house and was there until we left. I think it was Walter’s spirit letting us know he was OK. I had asked to be able to sense if he was around, if there was anything he wanted us to know. I mentioned that I thought it was his spirit to the court reporter and she said she was thinking the same thing. It was powerful and I don’t think I will forget it.

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Jury Duty - The Case Part II

The witness list was long-43 witnesses actually testified in court. There were over 200 pieces of evidence and 120 hours of testimony. There were many expert witnesses-some better than others.

In order for the Plaintiff to prove their case they had to first establish that the slide started on City controlled property rather than either the Guthrie property or the Wilson/Wood property. They first tried to establish that the slide was a rotational or rotational/translational landslide-which would start at the top of the slide mass versus a pure translational slide which would start down slope and most likely at the bottom, which would have been on the Guthrie property. See this link for information on landslide types. Http To do this they brought on expert witnesses in Geotechnical Engineering. The experts’ theory was that due to a road improvement project on the uphill road, Hillside Avenue, done in 2001, the loading on the uphill slope was increased, and that, along with an unusually heavy winter rainy season, destabilized the slope which caused an active landslide that resulted in a mud flow that occurred on April 12, 2006. Expert witnesses included a hydrologist-Thomas Burke and a geotechnical engineer-Craig Herzog. There were other supporting players that continually tried to reinforce the same message over and over and over again. The City claimed that it believed at the time that the slide was on private property and that they have/had no duty to inspect private property (which by statute they do not have such duty).

The Plaintiff then had to prove negligence by the City. They claimed that the City was aware that there was an active landslide as of March 31, 2006 and that they failed on several fronts, the primary one being that they did nothing to prevent it by neither tarping the hillside and the head scarp, nor covering the tension cracks in the roadway to prevent further infiltration of water, nor dewatering the slope with dewatering wells. The plaintiffs also claimed that the City did not have adequate policies and procedures in place to monitor landslides and that they failed to warn the Guthries about the impending danger. In order to prove negligence, the plaintiffs had to prove that the event was reasonably foreseeable. The term “event” became a point of contention. Event, as defined by the plaintiffs was the active land slide that resulted in a mud/debris flow that killed Walter Guthrie.

The City’s position is that they were aware of an active landslide on March 29th and called a soils engineer out to inspect the area, which occurred on March 31st. The geotechnical engineer, Scott Stephens, walked not only the City controlled right of way, but also went onto the Guthrie property and the Wilson/Wood property to adequately envision the movement of the hillside. At that time, the geotechnical engineer had an opinion that it was a slow moving creeping slide and that it was moving toward the ravine. The engineer saw the toe of the slope near the ravine, which was a seasonal water course and recommended to the City that a plastic pipe be placed in the ravine to collected run-off from upslope and direct it past the toe of slide so as not to destabilize the toe of the slide. Immediately following the site walk he and the field engineer, Richard Dudak, met with the City’s Director of Public Works, Wayne Bush, and recommended the installation of the pipe and that Walter Guthrie contact his own soils engineer to inspect his property. The Director of Public Works then called the homeowner (whom he had been trying to reach for two or three days) and recommended the installation of the pipe, keeping the watercourse clear and that he contact a geotechnical engineer. The City also installed horses on the down slope edge of Hillside Avenue because of concern that the slide would undermine the public road above the property and directed the Scott Stephens to prepare a proposal for stabilization of the roadway. The City did not tarp the hillside believing that it would be ineffectual and that the slide was on private property. Dudak continued to monitor the slide during the next two weeks and observed continued movement in the range of 4-6” a day. However, the City’s geotechnical engineer was never called again. Event, as defined by the City of Mill Valley, was the actual mud/debris flow that killed Walter Guthrie, not the active landslide. Landslides do not always result in mud/debris flows-in fact it is rather unusual. They contended that the mud flow was not foreseeable and therefore there was insufficient time to warn the Guthries.

Photo—Lisa Guthrie at the back of the home (master bedroom) where the mudslide hit the house)

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Jury Duty - The Case Part I

On April 12, 2006, a landslide turned to a mud flow and came down the hill at 3:00 am burying Walter Guthrie under tons of mud as he was trying to clear out a culvert under his home. The widow of Walter Guthrie, Lisa, and her neighbors, Douglas Wood and Periann Wilson are suing the City of Mill Valley positing that 1) the landslide started on City controlled property-the right of way for Hillside Avenue which was above the Guthrie property, and 2) the City of Mill Valley was negligent in that there was adequate notice of an active landslide and they did not take adequate measures to prevent the mudflow or to warn the residents.

To adequately understand the issue, one must look at the site model (see photo). The house that the Guthries lived in was built in 1963 and purchase by the Guthries in 1970. It is on a steep (37°) sloping site with a natural seasonal watercourse (ravine) running down the middle of it to a culvert that ran underneath the house and then into another water collection system. The house looks like a dam on the hillside ravine. There is a roadway that runs around the top of the property called Hillside Avenue. It was built before the City annexed the property in 1925. It was constructed by a method called side-casting which is where the cut from the hillside is then cast over the side to create the bed of the road. It was, and sometimes still is, a common method of road construction.

On the evening of April 11, 2006 Lisa Guthrie was returning from Portland where she was visiting her daughter and her new grandson. Her husband picked her up at the airporter bus. It had been raining all day that day. He told her that there had been rocks coming down the hill that evening and he suggested that she sleep in a different room that night since the noise of the rocks and boulders coming down and going through the culvert would keep her awake. She went to sleep in her daughter’s old bedroom. At 3:00 am she was awakened. She went into the master bedroom and saw that Walter had a light rigged up in the bedroom shining through the sliding glass door to help him see the culvert. He was standing up hill a little and wrestling with the boulder trying to keep it from going into the culvert. Rocks, ranging in size from a grapefruit to the size of a human head, had been coming down the slope every two minutes. Lisa called out to Walter to come inside, that it was dangerous. She then went and called 911 saying they needed help. The operator asked if they needed to be evacuated and she said no. She then went back to the bedroom to get dressed. She had her back to the door when she heard a “whoosh” sound. She turned around to see the glass of the door bowed from the mud against it, mud coming in the door and a tree branch in the bedroom quivering. She realized that her husband was buried under the mud (about 8 feet at that point) and tried to claw her way through it to him. Realizing she couldn’t, she ran out the door waiting for the emergency crews. She started to go back in and heard the house creaking, realized she was in danger and then left again. It took almost 36 hours to recover Walter’s body.

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Jury Duty—The Selection Process

I reported for jury duty on February 26th, a Thursday. Over 225 people were summoned that day. The judge and attorneys came to the jury assembly room to explain a bit about the case and to weed out those with hardships. I wasn’t sure about our policy regarding jury duty so I couldn’t automatically opt out. Those remaining were then sent down to the courtroom and quizzed about pre-trial publicity. I remembered the case but new nothing else. Since I wasn’t sure about the firm’s policy for jury duty I was told to come back the next day to fill out a questionnaire, which I did.

On Friday I returned to the courtroom. We had just been shortlisted for the California Department of Corrections mental health facilities project and the interview was to be the following week. I pleaded that our firm was going to be interviewed for a project for the CDCR the next week and I need to be there. No dice—fill out the questionnaire. The questionnaire was 12 pages long and asked several questions about background, education, employment and views on certain items-like attorneys. One question asked was “Do you or anyone you know have, or ever had, a mental disease or disorder?” My response was “Can you ask this question under HIPPA?” I thought for sure that would get me off the jury. It didn’t. After filling out the questionnaire we were directed to come back on Tuesday morning March 3rd for voir dire.

After sending an email to one member of our HR team and not receiving an answer, I called another HR representative on Tuesday morning on my way to Court. I had read our policy which said that we had a limit of 80 hours or two weeks, but it mentioned something about partial weeks that I didn’t understand. The HR person first said it was 80 hours—period. I asked about the partial weeks exception but she was unsure. I thought I had just gotten out of jury service. In the courtroom everyone sat in the gallery while the clerk called up 18 people to sit in the box to begin voir dire. I was waiting for the judge to bring up hardship when I received a call from the HR rep who told me that if the trial does not last full weeks (less than five days a week) the firm would continue to pay my salary. Since the judge had told us that the trial would be held three and half days a week, I would be paid and could not claim financial hardship. Right after lunch the judge asked about financial hardship which eliminated several people, including one sitting in the twelfth chair. My name was the next called. The attorneys went through voir dire all afternoon and eliminated several for cause. When they got to me I was asked about my job, the type of projects I worked on (when I said I designed hospitals there was a twitter of awe throughout the courtroom—who knew?), my experience with the Design Review Commission (on which I sit), and what I knew about computers. My answer—“I don’t know how they work, just that they do.” The defense attorney noted that I had served on two previous juries before and had been the foreperson twice. He jokingly asked if I had campaigned for the position. By the end of the day they had gone questioned all 18 jurors and eliminated those for cause. The next step was preemptory challenges. The judge dismissed the jury for evening after reading the admonition about discussing the case with anyone. We were to return to court at 9:30 the next morning.

We filed back into the courtroom the Wednesday morning and checked in with the clerk, not showing up would mean that a bench warrant would have been filed by the Court. We sat in our designated seats and I’m sure each of us hoped that our names would be called. The plaintiffs had eight challenges as did the defense. Each used two challenges, eliminating those that appeared might have had difficulty in understanding the technical information or who had some preconceived notions about responsibility. With four excused, fourteen were left, 12 jurors and two alternates. The Court wanted four alternates so two more called and interviewed. The attorneys accepted the two alternates and by noon, there was a jury. I was Juror Number Twelve.

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