Public Interest Investigations

Out of the Box

Los Angeles Daily Journal
February 11, 2000
Author: Keith Rohman, PII President

Because error-free deliberations rarely occur, investigating juror misconduct may be a wise maneuver to overturn an adverse verdict.

Few moments in a trial lawyer's life are as disheartening as when a jury returns a big verdict against a client. While the last thing a lawyer may want to do is fight on, inaction at this critical moment could mean a lost opportunity to turn things around.

Jury misconduct is far more prevalent than most attorneys realize. While some misconduct may be relatively insignificant, jurors will occasionally commit serious breaches. In one Southern California case, a law enforcement agency was sued by the family of a obese man who had died while hogtied by the police. Three jurors had their spouses hogtie them to test their abilities to breath. One of these jurors tried this with her spouse, and then had her obese sister (an attorney) try it just to be sure. All reported their findings to their fellow jurors who returned a verdict for the plaintiff.

In a personal injury case, jurors calculated the damages for the plaintiff and then added a sizable sum for attorney's fees and taxes. In another case, jurors committed misconduct by agreeing at the start of deliberations to "average" their proposed damage awards to arrive at a final amount.

Jurors' omissions during voir dire are another source of misconduct. One juror on a civil case involving cocaine psychosis neglected to mention that her brother had died from a cocaine overdose. Another juror on a sex-crime case failed to tell attorneys that his wife had been raped by a black man who was roughly the same age as the defendant. The jury misconduct investigation in this case revealed that as the trial ensued, the juror and his wife had numerous discussions about whether the defendant was, in fact, her rapist.

These are not isolated incidents. Experience shows that a jury completely free of misconduct is the exception, not the rule. To use jury misconduct to their advantage, however, attorneys need to overcome some common misconceptions about jurors' post-trial attitudes.

Jurors won't talk to the losing side. This simply isn't true.

Most jurors, when contacted by someone with good people skills, will agree to be interviewed and will often sign declarations about the jury's proceedings and potential misconduct, even though these declarations may be used to overturn the verdict. Even on a unanimous jury, usually two or three people have misgivings about their decisions and may be willing to cooperate with you once they're away from the other jurors.

Jurors don't want to be bothered. While jurors are happy to return to their normal lives, they still have a desire to talk about the jury experience.

For many, jury service was an unusual adventure, and they want to discuss it with someone knowledgeable about the case.

Jurors have negative feelings about the attorneys. Even though they find against one side, most jurors grow to like the lawyers on both sides. Often, during a jury debriefing, jurors welcome the opportunity to "explain" themselves to the lawyer whose client they found against. Sometimes, even when they dislike the lawyer, they will agree to an interview to let off steam about the case or about the lawyer.

Given the emotional and financial costs of going to trial, the decision to launch a jury debriefing can be a difficult one. A good rule is to debrief the jury whenever there is a significant verdict against your client. Compared to a lengthy prison term or a judgment in the millions, the costs of a proper jury debriefing are small. Attorneys will want to protect their verdicts, and any hint that the losing side is contacting jurors means the winning side should do so as well.

Follow hunches. If, following a verdict, jurors complain in the hallway about something that made them uncomfortable, the jury should be investigated. Even if the misconduct seems minor.. If jurors were moved to approach attorneys about a small point, other aspects of the deliberations were probably questionable.

Watch for red flags. Sloppiness in the courtroom atmosphere, or in the handling of a jury, can create sloppiness by the jury, which may result in misconduct. Pay attention if the trial included a controversy about an individual juror, a law book found in the jury room, or a cryptic question sent out by the jury. Any of these could indicate possible misconduct.

When attorneys decide to look for misconduct, they should act immediately. While it's a bad idea to conduct an interview in courthouse hallway, attorneys should use this time to alert jurors that someone ? an associate, law clerk, paralegal, or investigator -- will contact them later to discuss the case. Also, don't leave jurors alone in the hallway, thus allowing opposing counsel to woo them. The goal is to make jurors want to cooperate with your efforts and not the opposition's.

In-person meetings are the best setting for an effective juror interview. Phone interviews, while sometimes helpful, are rarely as productive as a face-to-face meeting with a lawyer's representative. Anyone with good interview skills can meet with jurors. However, the attorney who tried the case should avoid conducting the jury investigation. While jurors generally leave the trial feeling positive about the attorneys, many will not speak frankly with the attorney and may even refuse to cooperate because they don't want to rehash events in the attorney's presence.

Most judges are rightly protective of their jurors and will not provide home addresses. Fortunately, most jurors can be easily found by a quick skip trace. To prepare for this, keep voir dire notes, which include the correct spelling of jurors' names, ages, and city of residence.

While a jury misconduct investigation can seem overwhelming after the stress of a trial, the results can dramatically alter the outcome for a client.

Keith Rohman is the president of Public Interest Investigations, Inc., in Los Angeles.

© The Daily Journal Corporation. All rights reserved.