Patterico's Pontifications


Follow-Up to Post About Possible Jury Misconduct

Filed under: General — Patterico @ 9:49 am

Remember DRJ’s post about the juror who sent a note to the judge during a civil trial asking: “What is the maximum amount that can be awarded?” It turned out that the jury was favoring the defense, and the woman who sent the note favoring the plaintiff was in the minority. Still, the defense (Ford Motor Company) settled for $3 million out of fear caused by the note.

A follow-up story is here:

Ford says a jury note to the judge — that asked, “What is the maximum amount that can be awarded?” — fraudulently induced the car company to settle with Rosa Martinez, a Brownsville woman who was paralyzed from the neck down after a 2002 rollover wreck in a Ford SUV.

. . . .

Martinez’s lawyers argued that guessing wrong about a jury’s intent is no grounds for reversal. However, the Supreme Court said in a 9-0 decision that Ford may question jurors under oath to determine if the note was sent in an attempt to induce a settlement.

“Discovery involving jurors will not be appropriate in most cases, but in this case there was more than just a suspicion that something suspect occurred — there was some circumstantial evidence that it did,” the ruling said, noting that several jurors objected to sending the note and others did not know that it was sent.

This seems right. If there is an indication that a juror actively engaged in misconduct, it should be investigated.

13 Responses to “Follow-Up to Post About Possible Jury Misconduct”

  1. This non-lawyer fails to see how asking the judge a valid question constitutes “jury misconduct”.

    Techie (9c008e)

  2. Techie, your statement does not fit the subject to which you are responding. Please re-read the subject matter (read it for the first time).

    John Hitchcock (fb941d)

  3. “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.

    Sucks to be Ford, looks like they gambled wrong.

    Is there any proof of collusion between the plaintiff and the juror?

    If she had actually wanted to know what the maximum amount was, should she be denied that knowledge fearing the defendant’s lawyers might freak?

    How are you going to convict her/null the court decision? Read her mind? (“Your Honor, I honestly wanted to know. That’s all.”)

    Techie (9c008e)

  4. From my reading of the opinion, plaintiff’s lawyers screwed up. They did not ask the trial court to enter judgment on the settlement before they agreed to stop the trial.

    Hey, law is process. Get a good lawyer.

    nk (fb48f8)

  5. Techie, and you wonder why the cost of goods and services is so high? Sucks to be a Ford buyer, a medication buyer, a patient, a (insert item here) buyer.

    It’s idiots like that woman, who should be hanged in effigy and criminally prosecuted if at all possible, and the colluding attorneys and politicians that are very responsible for the high cost of doing business.

    TORT reform, now!

    John Hitchcock (fb941d)

  6. This may be a wake-up call to both plaintiff and defense lawyers in Texas.

    nk (fb48f8)

  7. TORT reform, now!

    Comment by John Hitchcock — 4/4/2009 @ 12:09 pm

    It’s coming, John. But it will be called governmental immunity. Once The Teleprompter-Elect is the CEO of your car company and of your health provider.

    nk (fb48f8)

  8. And, BTW: Yayy, a Texas post!

    nk (fb48f8)

  9. Then it sounds like Ford needs a new legal team.

    They were so gun-shy they leaped to settle on the appearance of something literally straight out of a Paul Newman movie.

    Yes, I’m all for major tort reform, but I’m sure Ford Motor Co. needs the publicity of taking away the settlement award to a lady in a wheelchair. That’ll go over great in the media.

    Techie (9c008e)

  10. Sucks to be Ford, looks like they gambled wrong.

    Is there any proof of collusion between the plaintiff and the juror?

    There doesn’t have to be collusion between the plaintiff and the juror for the juror to have misbehaved.

    If the juror, knowing she was out-voted 11-1, sent the message to the judge in the hopes of scaring the defendant into settling, that’s misconduct, no matter how stupid the defendant’s lawyers were.

    Steverino (69d941)

  11. Well, actually, the gun-shy ones were the plaintiff’s attorneys who agreed to stop the trial without a certified check in their hands.

    nk (fb48f8)

  12. Ford (meaning its outside defense counsel, almost certainly working closely with in-house counsel, all of whom are very, very experienced and sophisticated) made a calculated decision to settle and thereby eliminate their risks. Inherent in that decision was the possibility that if they had refused to settle, they might have won outright.

    Any lawyer who doesn’t know that jury notes can be badly misleading — whether deliberately or innocently — is incompetent. I don’t know the individual lawyers involved here, but I am virtually certain that all of them, whether from the outside defense firm or Ford’s in-house legal staff, knew that and knew it well.

    I’ve now read the entire decision. It’s crucial to keep constantly in mind, in discussing this case, that the question presented was simply whether Ford could get formal discovery on the facts pertaining to the note. Although Ford had informally interviewed the jurors, and most of them had cooperated, that’s not an adequate substitute for being able to place jurors under oath and compel their responsive answers under penalty of perjury. The trial court refused to permit Ford that opportunity, and the Texas Supreme Court has held that decision to have been an abuse of discretion.

    But the chances that Ford will ultimately be able to avoid the consequences of its decision to settle are, in my opinion, vanishingly small. Yes, as Justice Wainwright’s concurrence points out, the Texas rules (and probably their counterparts in other states and the federal system) might well benefit from being revised to give everyone concerned more guidance on when and under what circumstances jurors may ask questions while deliberating. But the possibility that the note’s author was merely gratifying a personal whim — one unconnected to the whole jury’s actual deliberations, and one in which she was only speaking for herself — was known to Ford. It chose to disregard that risk, and instead to pay a bunch of money to avoid the risk of a losing verdict.

    There has not yet been the ghost of a shadow of a hint of an objective fact alleged — much less proved — to place the responsibility for that judgment (or, in hindsight, misjudgment) on the plaintiff or her counsel.

    Indeed, Ford has not yet even alleged such a scheme. Rather, it argues that it may be able to avoid contractual liability based on the theory of “mutual mistake of fact” — supposedly on the theory that both Ford and the plaintiffs’ counsel were operating on the mistaken premise in their frantic settlement negotiations that the note reflected a genuine issue troubling the entire jury panel. But that’s preposterous on its face. That may have been their mutual guess, but both sides knew — or should have known — that jury notes are extremely unreliable, that jurors often can and do send out notes without any notion of the effect their questions may have, and that even after sending such notes, jurors may change their minds in ways that make their earlier questions entirely moot. The “mutual mistake of fact” doctrine is designed to help avoid contractual liability when, for example, a contract recites that Seller will convey to Buyer the Seller’s house located at 123 Main Street, when both sides believed that was in fact the address of Seller’s house, but it turns out that (through both side’s innocent mistake) Seller actually owned the house at 132 Main Street. Neither side’s guesses here (about the possible import of the note if the jury deliberations had been permitted to continue until conclusion) are the sort of “material fact” that can be used as a defense to rescind the settlement contract.

    Nope, unless Ford develops proof of a conspiracy between the plaintiff and her counsel, on the one hand, and the note-writing juror, on the other, then I expect that Ford will be found to have breached its settlement contract, that judgment will be entered in favor of the plaintiff for the full settlement amount, plus pre- and post-judgment interest and very substantial attorneys’ fees.

    And that’s true even if Ford ultimately proves that the juror in question deliberately misbehaved, e.g., that she deliberately intended to “spook” Ford into settling rather than waiting for the verdict. I’m certainly not trying to defend or justify such actions. But the risk of them happening is part and parcel of the jury system. And litigants don’t both get to hedge their risks by agreeing to a pre-verdict settlement (as Ford did here) and still complain later that they wish they’d done otherwise. If Ford believed that its case was solid and that its car genuinely was not defective, then it ought not have agreed to the settlement. Color me extremely unsympathetic to their position.

    Beldar (270491)

  13. I have filed a wrongful death suit against Ford Motor Company, My son and his girlfriend were burned to death on 12-09-06.The cruise control switch was defective,brake fluid/fuel filter design flaws etc. Ford Motor Company is ruthless,they lie, and this report does not surprise me at all. They do not care about the customer, it’s all about greed. PAY THE WOMAN SHE’S PARALYZED FOR LIFE! Who cares about a note, what happen to Good ole American Integrity, Values and Morals? Ford needs to take responsibility for it’s defective designs, that is the bottom line.

    Delicia Dawn Lewis (7b5f5a)

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