Empathy and the Jury
Originally published in the Kenyon Review, November 5, 2010
Eight of us filed back into the courtroom, into the juror’s box and sat down. As everyone else in the room also sat, the judge peered at us over her glasses.
“Jurors,” she said, “I understand that you would like to hear the definition of negligence again.”
We nodded mutely.
She opened up a thick binder and began to read: “The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances.’” She stopped. “Does that satisfy your request, jurors?”
We looked at each other and nodded. As we walked back to the jury room, we held the definition of that single word in our minds like an object, a tangible thing that could be held.
Anything with limits can be imagined correctly or in correctly, as an object,
even some language in the way that it is remembered, if you consider
each repetition a fact of varying strength in various situations of frequency and quantity“*
This week, for the first time, I was chosen to sit on a jury. It was a summary trial, a civil case: short, involving little testimony, and concerning a motor vehicle accident in which the plaintiff was suing for damages.
Our job was to determine whether the defendant was negligent in his driving, therefore causing the accident, and if so, how much he was at fault, and how much money the plaintiff should receive.
On my first day of jury duty, I took several books with me to the courthouse to read while I waited to be called. One book happened to be I Love Artists by Mei-Mei Berssenbrugge -- a signed copy that I had recently found at Housing Works. I was just starting to reading the poem “Empathy” when I was called in for into the jury selection room.
As anyone who has been on a jury knows, there’s a lot of waiting around -- not just at the beginning, but all the way through. Plenty of time to make my way into the poem. I was struck -- and also, somehow not surprised -- by how so much of what Berssenbrugge explores in “Empathy” reflected what I was experiencing as a juror.
The speaking is a constant notation of parallel streams of thought and observations,
whose substance is being questioned in a kind of oral thought at once open and precise,
but with a tension between ideas and her sense of scandal at invoking a real person.
In this trial, as I suspect in all trials, the word (the language, the speaking) became both a tangible object -- testimony given under oath constituting a concreteness of evidence, and the law written down, read and repeated -- and a kind of shifting miasma “at once open and precise” -- did he really mean that he didn’t see the other car, or that he didn’t look?
This state of confusion is never made comprehensible by being given a plot,
in the same way a complicated plot is only further complicated by being simplified
More, the plaintiff didn’t speak English and needed a translator, adding to further layers to the ways that meaning could be lost, shifted, transformed.
As a descriptive stream or spontaneous reaction to him,
speech serves as a starting point for uncovering a story through translation from wish into desire,
but when thought becomes reflective, a problem of interpretation enters the stream of emotion itself.
The speaking becomes fixed, although there is on such thing as repetition.
While the whole process seemed to be an attempt to find truth through speech -- that is, to fix an unchanging meaning onto an event through language, that task was, in the end, impossible.
There were two completely different stories about the same event, and both existed simultaneously in the courtroom, both made manifest by speech under oath.
And it was up to us -- a group of random strangers plucked from our daily lives into this gigantic, complicated legal system of law/language -- to weigh the strength, veracity, object-nessof the words spoken-evoked-manifested.
In the end, we felt we didn’t have enough evidence -- object-facts whose meanings were completely fixed and could not shift. We did not believe either version of the events. Or, we believed both versions. Both still simultaneously exist forever, nothing being resolved, except that we were allowed to go back to our daily lives, and the lawyers collected their fees. There is still an old man in pain. A young man who can hold on to his money.
All resting on the definition of a single word: negligence -- a definition codified by a meaning-making body (the court of law), which, as players in the system, we rested against, as if against a solid object in a field of shifting ground. But we also participated in the making of meaning as we ourselves spoke, debated, and decided, sitting around a table while outside the rain fell and fell.
Be that as it may, real and constant luminosity of the parts can create
a real self who will remain forever in the emotion of a necessary or real person.
To deny this is to deny the struggle to make certain meaning stick.
* All quotes from “Empathy” by Mei-Mei Berssenbrugge, in I Love Artists, University of California Press, 2006.