Joseph S. Fulda

Joseph Fulda is a freelance writer living in New York City. He is the author of Eight Steps Towards Libertarianism.

This is a tale that can be read two ways. The reader who is merely a libertarian will read it one way. The man of faith will see a lot more. It must be capable of being read in two ways or faith would not truly be faith.

I had the privilege and the honor of being selected for service on a civil jury in New York State Supreme Court, where a six-member jury is impaneled, with five sufficient to render a verdict.

The case concerned a woman who had been badly scalded -- to the point of considerable disfigurement -- in her shower. She, and her husband, filed suit against the landlord and the boiler-repair company. Her claims were several. His claim was loss of consortium.

I listened to the testimony alertly and intently and, after the charge was given to us by the presiding Justice, saw immediately that the boiler-repair company could not possibly be held liable. They were on-call and there was no evidence given whatsoever that they had ever been notified that the boiler was malfunctioning! Who knows why they had been named a party to the lawsuit?

In the jury room, I asked my colleagues to send a note to the judge asking him how the repair company could possibly be held liable. It seemed to me that as a matter of law, they should be held harmless. When the judge received the note, he had a small fit. "You are not the foreman," he lectured me staring at me intently, "and only the foreman can send out a note with a question." Of course, he did not want us to show our hand to the parties. If a question is properly asked, it becomes a part of the record and must be divulged to all parties. So he sent us back, after disallowing the note. But I was undeterred, and not at all through; I wanted what I normally want: the complete exoneration of the innocent. So, I boldly asked my colleagues to elect me foreman, although I was the youngest of the lot. They obliged. The note went out again.

The judge scowled, but said that the jury could elect its own foreman, although that was unusual. He then "answered" the question by repeating verbatim et literatim his jury instructions on negligence. But this time the note was entered onto the record. So, I had the privilege and the honor of speaking first, and of exonerating the completely blameless. Little did I know that I would not be permitted to speak again. And, try I did! Four of my colleagues saw it my way, that the law of negligence did not hold the landlord liable either -- although ethics clearly did, a subject we could not and did not even broach. The sixth juror, a woman of little intelligence but much empathy, simply repeated over and over again that she could not make up her mind, notwithstanding our concerted efforts at persuading her.

So, I tried to speak again, this time to no avail. I tried ever-so-hard to persuade my four colleagues to deliver a five-person verdict, based on the law and the facts as we all saw them, but they would not allow it. They said to me, "Have some patience. Wait. She may yet come around." What she actually did, however, suggested otherwise: She asked to examine the extensive photographic evidence of the injury taken when it was fresh. Having been obliged, I had little choice but to oblige her. Note after note was sent out of the jury room calling for the production of this-and-that evidence of the severity of the burns. This, of course, sent a clear and unmistakable signal to the landlord: Settle, or else! I have no idea whether my four concurring colleagues understood this or not; all they did was wait, and I, however reluctantly, with them.

I entirely misunderstood the woman's review of the photographic evidence. She turned out not to be completely unpersuadable at all; she was merely showing enormous empathy. Finally, she was ready, and she joined the five of us for what my colleagues had wanted all along: a unanimous verdict for the defendants. They, too, were not to be permitted to speak. They were allowed to speak second, merely to counsel -- nay, insist on -- patience, while the woman was permitted to speak third, merely to display empathy.

My finger, as foreman, was now on the button -- literally, on the button -- from the jury room to the Court, ready to press it to ring the bell notifying the Court that the jury had reached a verdict. At just that very moment, the other bell rang, from the Court to the jury room. We were all summoned into the presence of the judge, who, this time cordially, addressed me: "Mr. Foreman, Ladies and Gentlemen of the jury, thank you for your service; the parties have reached a settlement; you are free to go." The judge's charge, and all else that he had said, turned out not to matter at all.

I was stunned, and more than a little upset. I did not approach counsel for the plaintiffs or for the landlord, for I had nothing to ask them. I made a beeline for the lawyer for the boiler-repair company and, with considerable dismay, asked him why he had settled. His reply caused a light bulb to go on within my thick skull: "The other parties settled; I did not."

So, who spoke last in that courtroom in 1983? The libertarian will say that the parties who should have been talking all along -- and without the involvement of the State at all -- spoke last. This was truly just between them, and they settled it -- as they should have.

That, however, is not my conclusion, although I am a libertarian. My conclusion is that the entire performance, from beginning to end, was orchestrated by the Almighty Conductor above us all, including exactly who was permitted to play what notes when. Now you know, dear readers, why selection for service on that jury was described by this author as an honor and a privilege. None of us, ever, truly has the last word. *

"It is error alone which needs the support of government. Truth can stand by itself." --Thomas Jefferson