What Constitutes Juror Misconduct?
[Guest post by DRJ]
The Austin American-Statesman has the story of a fascinating case pending before the Texas Supreme Court in which the Ford Motor Company wants to undo a settlement in a $3M rollover case based on alleged juror misconduct:
“Right out of a Hollywood movie, the dramatic jury note arrived in the courtroom on the third day of deliberations, changing everything for Ford Motor Co. and its legal opponent, a Texas woman paralyzed in a 2002 rollover accident.
“What,” the jury asked, “is the maximum amount that can be awarded?”
Fearing the jury was about to give the Brownsville woman a much larger award, Ford quickly settled the lawsuit for $3 million — about double what the carmaker discussed paying in earlier settlement talks, company lawyers said.
So imagine Ford’s surprise upon learning that jurors had been leaning 11-1 in favor of the car company.
What’s more, the lone holdout was presiding juror Cynthia Cortez, who wrote the jury note on her own and sent it to the judge over the objection of several other jurors.”
As I read the article, the issue is how far will the Court let a litigant go to void a settlement and investigate alleged juror misconduct if the case settled based on the actions of a juror.
There’s more detail in the article so please read the whole thing.
— DRJ
If the jury was genuinely at 11-1 for the defendant, and I was on the majority side of the jury and thought the holdout was trying to pull a fast one, I’d send a note out at the same time as the other one saying “we’re deadlocked, and the holdout is playing games.” Or–if the state in question doesn’t require a unanimous vote in civil cases–I’d call for an immediate vote to shut the malcontent down. Or send out a note at the same time asking, “What is the lowest amount we could award if we find for the plaintiff?” Since none of this happened, I question how much objection there really was to the note from the rest of the jury.
M. Scott Eiland (5ccff0) — 1/18/2009 @ 12:13 pmI think only the foreperson can send out a note under Texas law, at least that’s the rule in most courtrooms I’ve been around. If that’s true, then even if another juror tried to send out a note, the bailiff would probably refuse to take it.
DRJ (345e40) — 1/18/2009 @ 12:16 pmOn the other hand, the Texas Uniform Jury Handbook says this about jury notes:
DRJ (345e40) — 1/18/2009 @ 12:22 pmIf it were really 11-1 then it would seem they coul;d just replace the foreperson. Is it actually a formal role or just a custom that has been adopted because inumerable juries over centuries have found that it makes the job easier? I would have a lot of problems with a system that would allow 7 jurors to silence the other 5 in any questions they had for the court.
Soronel Haetir (cabedb) — 1/18/2009 @ 12:48 pmI think this case should be retried and Cortez face legal sanction. I would wager she’s another Business hating Socialist.
PCD (7fe637) — 1/18/2009 @ 1:15 pmThat seems — to me — to be an entirely reasonable question, and Ford’s refusal to pay an example of buyer’s remorse. I hope that Ford has to pay interest, as well as a contempt fine.
htom (412a17) — 1/18/2009 @ 1:29 pmOK, see me see if I get this right: a non-English speaking woman, in Mexico, is riding in the vehicle with her brother whose driving skills are at best, terrible, he loses control of the vehicle, it rolls and she is injured. And although she is injured, the other passengers of the vehicle are relatively unharmed.
is
Then we are told that the non-English speaking woman is living in a nursing home paid for by Medicare.
OK, what is wrong with this picture? Do we now sue the auto industry because someone can’t control their own vehicle? If I run my truck into my garage because I put my foot on the gas pedal instead of the brake, and the garage falls on me, is that now the fault of the auto maker?
And why is a woman, who is obviously not a U.S. citizen, having her medical care paid for by the taxpayer?
This sounds like tort law at it’s worst to me.
Then, a juror, who against the wishes of other jurors, does something to indicate that the jury is leaning toward the plantiff, is not nullified?
She should be charge with whatever it is that jurors on the take are charged with.
This whole case sucks.
retire05 (c96ff0) — 1/18/2009 @ 1:59 pmSounds like this legal firm that needs to find a pair of brass balls never gets another nickel in business from Ford.
Not that it is all their (the legal team representing Ford Motors’) fault.
SteveG (a87dae) — 1/18/2009 @ 4:17 pmWith that kind of question they felt they had to fold at a time when walking into the room with a big loud clacking sound would have carried the day.
But if they were wrong, would the judgement have been a bigger loss than $3M?
Probably it would’ve been, which is why so many legal firms have to keep the big set under glass as a museum piece in the lobby… oh yeah… and if the case is against me it is OK to send the new guys that have the acrylic’s with the shattering problem.
Thanks in advance.
I just do not see misconduct. The question is a perfectly valid one. How is this jury “tea leaf reading” any different from that which occurs in voir dire?
If Ford, or any party, is entitled to know a jury’s disposition prior to an announced verdict, then this note would have been seen in context. But, last I checked, no one is entitled to know such a thing prior to the end of a case.
How many hundreds of decisions regarding tactics in a trial are taken in ignorance or guessing? I say it is ludicrous for any litigant to claim relief because of a bad bet.
Finally…..before we decide to tell jurors how they must behave and dictate procedures of deliberation, we ought think quite hard as to unintended consequences. In this instance, Ford paids its moneys, and it tooks its chances. Next case.
Ed (39e6e8) — 1/18/2009 @ 5:14 pmI would impose sanctions on Ford for this. It’s clear what they’re doing — they have a plaintiff in dire need and they are delaying payment in order to get her to settle, again, for a much smaller amount. I hope that there is a large supersedeas bond so the lady gets her check, plus interest and costs, as soon as the Texas Supreme Court affirms the judgment. And Westlaw should start a new headnote for this case: “Are you *&&^%$# kidding me?”
nk (9097f8) — 1/18/2009 @ 6:12 pmI’m aware of at least one other case in which the jury sent out a note that caused a panicky resumption of settlement negotiations — it read, “Are we limited to the amount of money the plaintiff has asked for?” The judge immediately returned the “standard answer” for questions jurors are deemed not to be entitled to a straight answer on, which was “Answer the questions asked in the Court’s charge using the definitions and instructions contained in it.” While the defense lawyer was on the phone trying desperately to get additional settlement authority from his client’s liability insurer, however, the jury returned a unanimous defense verdict. Turns out, as they were finishing up their work (having already agreed on all the answers), someone asked that question, just as a hypothetical; no one was confident that he or she knew the answer; and so they decided to ask the judge, via a note. They had no idea that anyone would take their note as an omen.
Trial lawyers know, or should know, that jury notes can be — and in real, everyday “life as usual at the courthouse,” very frequently are — highly misleading. One draws inferences and takes actions based upon them only at one’s own risk. “Polling the jurors” even after a purported verdict is returned and read aloud in open court sometimes ends up in them being sent back for further deliberations, which in turn can produce a hung jury or even a different result.
All of which is to say: Even the risk of a “rogue presiding juror” very deliberately trying to influence a settlement of this sort is an unlikely but known risk. Absent evidence of outside influence, Texas law makes jurors “incompetent” to testify about what went on inside the jury room. I’m not saying that I would have necessarily sniffed this note out as bogus had I been in the shoes of Ford’s trial counsel, and if the client wanted to dramatically increase its settlement offer based on the note, I wouldn’t necessarily have twisted their arms in the other direction — especially not with a client like Ford, which is indeed one of the most sophisticated and litigation-savvy corporations in the world. And, finally, I should note that all I know of the case is what’s in this newspaper account; I haven’t read the briefs, and it’s conceivable that Ford has other, better arguments than the article suggests. But based solely on what’s in the article, I believe Ford should lose.
Beldar (60f496) — 1/18/2009 @ 6:49 pmHere, by the way, is Texas Rule of Evidence 606(b), which appears in the section of the rules dealing with competency and incompetency of witnesses:
Thus, if Ford had evidence that, for example, the plaintiff’s lawyers had bribed (or otherwise influenced) the presiding juror to send out the note if the plaintiff’s case looked hopeless, testimony about that — including from the presiding juror under cross-examination — would be competent, relevant, and admissible. And before the current version of this rule was passed, it was very routine for the losing side in almost every big jury trial to skulk around trying to persuade jurors to fink on one another, to try to find some basis for arguing “jury misconduct” as a basis for a new trial. The current rule reflects a deliberate, carefully considered policy judgment that society is going to sharply limit the second-guessing of juror’s statements and actions — again, so long as there’s not outside influence involved. That’s not because we know jurors never misbehave; to the contrary, they routinely if mostly innocently, say and do things that aren’t strictly proper, and that may be entirely improper. Rather, it’s because society has superseding interests in promoting the finality of jury verdicts, and in avoiding the long-demonstrated greater evils of permitting them to be fodder for second-guessing and picking apart.
Beldar (60f496) — 1/18/2009 @ 7:05 pmExcellent analysis, Beldar. It’s hard to know the whole story but I question whether the defense would try to set aside a settlement based solely on juror interviews that don’t show clear wrongdoing. Maybe they did, but I wonder if the juror interviews triggered investigations that turned up information that led to this appeal.
DRJ (345e40) — 1/18/2009 @ 8:43 pmI agree with EricB,tampering with the jury system that honest disagreements are actionable offenses is a BIG step to take – soon jurors will be seated net to their own legal counsel in trials…
EricPWJohnson (670049) — 1/18/2009 @ 8:51 pmFord’s been avoiding paying a settlement agreement for FOUR YEARS? Regardless of how one feels about the merits of the underlying case, that’s unacceptable. It’s a pretty straight-forward question, it should have been resolved much, much faster.
Show me evidence, not just speculation and inferences, that the plaintiff’s attorney bribed or otherwise corruptly influenced the juror to send the note, and I could see overturning the settlement. Otherwise, they need to be hit hard for refusing an amount that they had previously considered appropriate to settle the case.
Frankly, this should be a separate case. They should have had to pay the settlement amount to the plaintiff 4 years ago. Then they could sue the juror, the plaintiff’s attorney, or even the plaintiff themselves to get the money back, if they were ever able to obtain adequate evidence.
PatHMV (a00c3c) — 1/19/2009 @ 9:35 amBased on what I read, I tend to agree with Ford’s claim that “one juror [was] manipulating her official position to produce a result that is completely outside the jury deliberations.”
It’s a sticky situation. I think that two of the justices hit it on the head when they said “If people got to understand that they could manipulate settlements with a note, a lot of jurors might do it.” I don’t think it’s that big of a mental leap to go from someone reading about this case, watching Runaway Jury, thinking “I can do that,” and then trying to control the situation and dispense their own brand of justice from the jury room.
The question is how do you limit the ability of a juror to use his position to influence events outside the jury room without opening a Really Big Can Of Worms? Perhaps notes from the jury are only reviewed and answered by the judge (perhaps with oversight by one or more other judges).
I stick by my normal position: If someone in a position of power abuses that authority, you’ve got to go back to the beginning and, if possible, start over. Cynthia Cortez gets the agony of watching the result set aside and a new jury gets to try it again. I don’t know how you prove whether she was tinkering with the system, so she gets off scot free with just the knowledge that she, intentionally or not, screwed with the system and now we’re going to have to clean up her mess.
Steve (81dc80) — 1/19/2009 @ 12:30 pmI, too, am in agreement with Ford on this issue. I believe this is a perfect example of juror misconduct and should be interpreted as such.
My possible solution?
Any questions to the judge should have to come from the foreman of the jury.
Any questions to the judge should have a 1/3 vote of approval to be submitted.
Any questions to the judge should be possible to be reviewable by the judge without involving the attorneys.
The judge should have a codified set of rules to determine which questions should be given to the attorneys for input or for information purposes.
And I realize my last two points would open up a whole different can of worms. I don’t have an appropriate answer to objections to those last to points.
John Hitchcock (fb941d) — 1/19/2009 @ 12:40 pmPardon my layman’s simplicity, but if jury deliberations are supposed to be conducted in private, then why would the judge let anyone else even know about the question?
ras (20bd5b) — 1/19/2009 @ 2:34 pmAny answer to a jury question should be considered debatable for fair jurisprudence. Except of course those questions that are “point of law” questions that can be answered by anyone who is versed in the specific code of law that applies.
John Hitchcock (fb941d) — 1/19/2009 @ 2:50 pmWouldn’t it be better if a jury’s questions were directed only to the presiding judge, who in turn would answer them in strictest confidence? That would seem to obviate grey areas such as this case where the question itself appears to be a veiled threat. Or are there instances where it’s not possible for a judge to keep the question private?
ras (20bd5b) — 1/19/2009 @ 3:08 pm“Pardon my layman’s simplicity, but if jury deliberations are supposed to be conducted in private, then why would the judge let anyone else even know about the question?”
You would want to let both parties talk to the judge about how to answer the question.
imdw (8bb588) — 1/19/2009 @ 3:10 pmras,
I don’t think the rules in any jurisdiction let the judge keep the jury questions a secret. It’s better to have a system that is as transparent as possible, e.g., in which the judge and parties hear the jury questions and get a chance to say how they think the judge should respond.
If the questions are secret, then the parties may become suspicious about what the judge is telling the jury. The next step will be putting the judge on the stand to testify what was said. We absolutely don’t want that.
DRJ (345e40) — 1/19/2009 @ 3:24 pmIs it possible that the actual jury discussion before passing the note was something much more innocent?
What about:
Notepasser: I want to award a million dollars.
Other jurors: That’s insane, besides it’s probably more than we could award anyhow.
Notepasser: So let’s ask the judge how much we can award. Maybe what I want to award is very low by comparison.
Other jurors: OK. That will settle it.
Occasional Reader (987496) — 1/19/2009 @ 3:52 pmNotepasser: I want to award a bajillion bucks.
11 other jurors in unison: You’re nuts. We’re going to rule in favor of the defense.
If you actually read the article, that’s about the gist of it in the “let’s make a dialog” you suggested.
John Hitchcock (fb941d) — 1/19/2009 @ 4:10 pmdrj,
On reflection, yup, you’re right of course; better that both parties know exactly what the judge is advising the jury. I hadn’t really considered the situation from the pt of view of how it would look from the parties’ pt of view. Thx for the explanation.
ras (20bd5b) — 1/19/2009 @ 6:52 pm