Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
At the end of a two-week trial last Spring, in the case of Montone v. City of Jersey City, a federal jury awarded nine former city police officers $2.17 million in a dispute over promotions. Three weeks later, counsel for the city’s former police chief receives a letter from one of the jurors:
I was wondering if you’d like to know a few details that pushed the jury to decide in favor of Montone and the Astriab plaintiffs. I know if I spent as many years as you did on a case, I’d want to know what happened!
If you’re that attorney, what do you do? Eagerly pick up the phone and call that juror back? Not so fast: In this case, a local rule prevents interviews, even post-trial, absent a showing of good cause. In this case, however, the juror initiated the contact, so it is a little like running into a former juror in a public place and responding when the former juror strikes up a conversation. So the attorney takes it up with the court, in this case U.S. District Judge Stanley Chesler.
And that is where the conversation ends. The judge declines to permit the attorney to respond. As related in an article in the New Jersey Law Journal, the judge’s opinion and order denying that contact interpreted the rule as barring even a response to the juror absent a reasonable showing that there had been some kind of misconduct. The privacy, integrity, and finality of the process, he reasoned, required keeping the deliberations in a black box, even when it is the former juror him or herself (the name was redacted in court records) who is the one wanting to open that box to daylight. In this post, I’ll share a few thoughts on views like this that seek to keep a nearly airtight lid on the jury even after the trial. I believe it is better to keep things tight on the side of what would warrant a retrial, but not on the side of simple communication and education.
Don’t Jump to Conclusions on a Tainted Verdict
The attorney for the city’s police asked permission to call the juror back claiming a response was needed in order to determine whether “the deliberative process was interfered with, or the verdict tainted in any way.” To me, that seems like jumping to conclusions in focusing on the jurors’ reference “details that pushed the jury to decide” to indicate possible outside influence. Alternately, it could just mean there were details of the trial, the evidence, or the deliberations that this juror wants to talk about. Having conducted hundreds of post-trial discussions with jurors, I find the latter explanation far more likely.
But maybe the attorney felt he had no choice but to try and make it an inquiry about outside influence, if the “good cause” that warrants post-trial communication is interpreted to mean something that is not just good, but potentially actionable in court. The judge, however, decided that this brief explanation of the juror’s focus did not provide enough. And, of course, there was no way to get the juror to expand on it.
That implicates the other argument that counsel offered: Tying the hands of counsel and, in effect, gagging the juror is a restriction on free speech. That argument is on even shakier grounds because the judge’s order isn’t a restriction on the juror’s speech, and limits on attorney speech are fairly common. So if any particular juror is reading: You can write down everything you want to say and send it to the attorney unsolicited. It’s just that the attorney can’t ask or reply.
There Are Better Reasons for a Juror Interview
The test of whether a reply is warranted shouldn’t come down to suspicion over a tainted verdict. There are better reasons for a juror interview, and these reasons relate to education and to closure, for both the parties and the jurors themselves.
Hearing from the jurors helps you understand the present case. The verdict is just the answer at the bottom of the page without the “show your work” component indicating how they got there. Attorneys and parties should want the satisfaction of knowing the process, knowing what worked and what didn’t work, and how minds were set or changed along the way.
Hearing from jurors also helps you prepare for the next case. It won’t be exactly the same, of course, but for most attorneys, there will be similarities. In that context, juror feedback is going to serve as advice for how to handle things next time.
But perhaps the best reason to allow post-trial interviews relates to the jurors themselves. It is difficult to sit for days or weeks hearing information and not responding or reacting. There is a closure in letting the parties know what you think and how you feel at the end of that ordeal. Granting that temporary soapbox also sends the message to jurors that their reactions are valuable and important, and that is part of what makes the experience feel worthwhile.
Privacy Concerns Are Best Addressed Through Juror Choice
The goal of promoting finality in a verdict can (and generally is) served, not by restricting communications, but by having a very high bar for the kinds of information that would warrant a retrial based on what the jurors say after the fact. Short of outright corruption by outside influence, the verdict generally stands. Indeed, in the precedent-setting case the judge refers to, Tanner v. U.S., jurors were partying with large amounts of alcohol, marijuana, and cocaine… and the verdict still stood.
Other than finality, the judge’s order is justified with somewhat vague references to the “integrity” and the “privacy” of the deliberation process. These are strong reasons why jurors should be neither required to communicate nor harassed into cooperation; but these are not reasons against jurors opting in to share information. In this case, the desire to share perceptions was so strong that the juror independently contacted counsel through a firm website. In other cases, however, judges can handle this opt-in process more efficiently by explaining it like this:
After a case, sometimes jurors want to talk to the parties, and sometimes they do not. It is absolutely your choice whether you talk or not. No one can require you to, and no one should bother you about it if you do not want to share. But if you do want to share, that is your right, and the parties and counsel are generally quite interested in hearing what you have to say. To allow you the full choice and to avoid the perception of anyone being harassed, what I will do is simply keep a list: If you don’t mind being contacted, put your preferred phone number on this sheet of paper. If you don’t want to be contacted, then don’t add your number and no one associated with these parties will try to call you. Again, it is your choice.
That preserves privacy without the use of a gag.
Other Posts on Post-Trial Interviews:
- Follow Nine Rules for Post-Trial Juror Interviews
- Treat Post-Verdict Juror Interviews as Education, Not Discovery
- Let the Jurors Speak (After Trial)
Image credit: 123rf.com, used under license