The Fourth Circuit made the world a little safer last week for lawyers who, when handed an unexpected chance to learn how juries work, choose curiosity over ignorance.
The case is Shatz v. Ford Motor Company, reported in today's National Law Journal. Lawyers D. Alan Thomas and John Isaac Southerland of Huie, Fernambucq & Stewart had traveled from their Birmingham, Alabama home to defend Ford in a product liability case in the District of West Virginia before Judge Frederick Stamp. They won the trial, and after the jury went home, "the courtroom clerk asked counsel for both parties to assist in removing exhibits from the jury room."
One man's trash
In the jury room, Thomas and Southerland found not only the trial exhibits, but a valuable cast-off: "On an easel in the jury room in plain view was a flip chart reflecting the jurors’ views on the evidence presented in the case." Thomas asked Southerland, who at the time was just finishing his first year of practice, to write down the jurors' notes. Southerland sat down and started copying from the chart, writing away until someone told him they were closing the courtroom and he had to go.
Back home in Birmingham, Thomas and Southerland presumably were still feeling very cheerful when they got an order from Judge Stamp. The judge's law clerk had told him she had seen someone copying notes in the jury room, but didn't know who it was. The order demanded answers and scheduled a hearing "to determine what action, if any, should be taken."
"Violated the sanctity of the jury room"
Thomas and Southerland confessed, explained they had copied the notes “[o]ut of curiosity, for professional information, and for personal development purposes," and handed over Southerland's work. None of this appeased Judge Stamp, who was mad, mad, mad:
[C]lear and convincing evidence shows that Mr. Thomas and Mr. Southerland have engaged in conduct that, from an objective standpoint, falls short of the obligations owed to the Court, to opposing counsel and to the jurors in this action. By failing in such obligations, Mr. Thomas and Mr. Southerland have required this Court to hold additional proceedings, have complicated the grounds for post-verdict motions, have violated the sanctity of the jury room and have interfered with this Court’s ability to achieve an orderly and expeditious disposition of this case, which necessarily continues through the time available for post-verdict motions.
Judge Stamp ruled that the copying indirectly violated the local rule against “communicat[ing] or attempt[ing] to communicate with any member of the jury regarding the jury’s deliberations or verdict without obtaining an order allowing such communication,” and that it somehow also was wrong under Federal Rule of Evidence 606(b), which says jurors can't testify to undermine a verdict. He ordered Thomas and Southerland to pay over $14,000, representing the plaintiffs' attorney fees and expenses in having to file papers and appear at the hearing on all this.
"Nor are we aware of any authority"
Almost two years later, the Fourth Circuit says there was nothing wrong with what Thomas and Southerland did. The local rule is designed to prevent harassment of jurors, the court explained, and here, "Not only was no juror contacted, but it is doubtful that any juror ever knew what transpired." As for "the sanctity of the jury room":
We have found no rule or law that makes sanctionable the viewing or copying of jurors’ notes after the case has ended, nor are we aware of any authority that confers per se confidentiality upon discussions in a jury room.
The National Law Journal asked Thomas what he would do if he had it to do over. "In hindsight, I would ask the judge for permission," was his diplomatic answer. In hindsight, looking at his two-year odyssey, you might instead try to write faster.
(Photo by Kazze at http://www.flickr.com/photos/kazze/289620863/; license details there.)
