Practice Tip: Protecting Your Verdict

“You want me to say it was a hard decision ' ” You are not breathing. Finally, the judge explains the polling process to Juror No. 4, and the clerk reads the qustion again. “ Juror Number Four,” the clerk says, “Is that your verdict?” “Yes,” answers Juror No. 4. The judge accepts the verdict and discharges the jury.

The plaintiffs immediately move for a mistrial on the grounds that the verdict was not unanimous. The judge invites the parties to provide simultaneous written submissions in seven days. In the course of briefing, the plaintiffs produce an “affidavit” from Juror No. 4. (It is actually a transcription of an alleged conversation between opposing counsel and this juror.) In the affidavit, Juror No. 4 states that he did not agree with the verdict and that he felt pressure from the judge in open court. Among other revelations, he also states that he was pressured by the other jurors to conform his verdict to theirs, and that the other jurors disregarded the court's instructions during their deliberation.

The above scenario is based on a true story: In Connecticut, the trial court subsequently denied the plaintiff's motion for a new trial, and the Connecticut Supreme Court ultimately affirmed both that decision and the jury's verdict in the defendant's favor. See Hurley v. Heart Physicians, P.C., 3 A.D.3d 892 (Conn. 2010).

The purpose of this article is to help the practitioner preserve his or her favorable trial verdict against allegations of juror impropriety. To that end, Part One herein identifies some of the most common juror-related pitfalls, and provides strategies for countering the allegations and tactics that could give rise to a new trial.

Jury Polls, Post-Trial Interviews and Juror Affidavits

Jury Polls and Juror Confusion

Whether a civil litigant has an unfettered right to poll the jury is an unsettled question. For example, the Supreme Court has stated:

That, generally, the right to poll a jury exists may be conceded. ' It is not a matter which is vital, is frequently not required by litigants; and while it is an undoubted right of either, it is not that which must be found in the proceedings in order to make a valid verdict.

Humphries v. District of Columbia, 174 U.S. 190, 19 S.Ct. 637, 638-39 (1899).

Some lower courts have construed Humphries “as an indication that the Supreme Court does not consider the right constitutionally protected.” Audette v. Isaksen Fishing Corp., 789 F.2d 956, 959 (1st Cir. 1986). Still others have questioned, but not decided, “whether a party may demand a poll of the jury in a civil action as a matter of right or whether that decision is commended to the discretion of the district court upon motion by counsel.” Kazan v. Wolinski, 721 F.2d 911, 916 n. 5 (3d Cir. 1983).

Notably, while the Federal Rules of Criminal Procedure codify the right to a jury poll in criminal cases, see Fed. R. Crim. Proc. 31(d), the Federal Rules of Civil Procedure do not contain a similar provision.

As reflected by the above cases, the rules concerning jury polls vary from jurisdiction to jurisdiction. Unless yours has a specific rule to the contrary, you should assume that a request for a jury poll is, if not a right, at least within the trial court's discretion. Accordingly, there is little to be gained by objecting to a request to poll the jury. If your adversary declines to request a poll, however, he or she cannot raise that issue on appeal. See, e.g., Audette, 789 F.2d at 959. Similarly, a party waives his right to object to the polling procedure employed by the court unless he asserts that objection before the jury is discharged. See, e.g., Rivera v. Conway, 350 F. Supp. 2d 536, 547 (S.D.N.Y. 2004).

Apparent Discrepancies

A larger concern arises when there is an apparent discrepancy between the individual verdicts stated during polling and the unanimous verdict announced by the foreperson. As an initial matter, it is critical to determine the nature of the discrepancy. Is the juror merely confused about the polling process? Or has your unanimous verdict suddenly vanished? Given the choice between the two, you would much prefer to resolve the confusion (and retain the verdict in your client's favor).

As noted above, the juror in the Hurley case ultimately affirmed the verdict in favor of the defendant. Thus, the plaintiff argued on appeal, once the trial court appropriately dispelled the juror's confusion about the polling process, it properly accepted the juror's final answer ' that “yes,” the verdict was his ' and accepted the unanimous verdict. The plaintiffs, in contrast, argued that the verdict was not unanimous; as they saw it, the trial court coerced the dissenting juror into accepting a verdict that was not his own. Accordingly, the characterization of the trial court's conduct during polling became one of the critical questions on appeal.

Connecticut, where Hurley was venued, has had cases on both ends of the spectrum. In Tough v. Ives, 162 Conn. 274, 277-78 (1972), a juror exhibited confusion about the polling process by stating that her verdict was for the plaintiff, contrary to the defense verdict that had been presented to the court by the jury as a whole. After an explanation by the court, the juror indicated she had initially found for the plaintiff, but had subsequently cast her final vote for the defendant. Id. The Connecticut Supreme Court found that the juror's final statement was sufficient to establish her assent to the verdict. With respect to the judge's conduct, the court explained:

[n]eutral inquiry by the trial judge as to the meaning of a juror's response is not erroneous. Only when such inquiry is coercive or seeks explanations, motives or information in the jury room should it be found objectionable. The action by the trial court here at issue is wholly different. In the case at bar, there was no argument, by either court or counsel, with the juror. Nor did the court require an explanation from the juror as to whether she changed her mind or the reasons therefor. The questions asked sought only to elucidate the meaning of her statement; there was no further inquiry. When the juror stated that her verdict was for defendant, there was no reason to send the jury back for further deliberation, and the court was not in error accepting the verdict.

Id. at 280.

In support of their argument, the plaintiffs relied primarily on State v. Bell, 13 Conn. App. 420 (1988). In that case, “the polled juror, after initially expressing doubt by her inability to state a verdict to the robbery count, was led by repeated pollings by the clerk at the court's insistence to five progressive responses culminating in a verdict of guilty to the charge.” Id. at 430-31. After carefully examining the nature of the exchange between the trial court and the juror, the appellate court determined that “such conducement of the juror's verdict deprived the defendant of his right to a unanimous verdict. This polling process was improper.” Id.

In affirming the verdict in favor of the defendant in Hurley, the Connecticut Supreme Court rejected both plaintiffs' characterization of the trial court's conduct and her reliance on State v. Bell:

The exchange in Bell is distinguishable from the brief and neutral inquiry undertaken by the trial court in the present case. Whereas the juror's response in Bell ' indicated that she had not decided whether the defendant was guilty of the polled charge, [the juror in question]'s first statement ' demonstrated that he was confused with the polling process. The trial court was not presented with any indication that [the juror] had not decided the issue of the defendant's liability. To the contrary, [the juror] repeatedly demonstrated confusion with the polling process, both before and after his remark ' “

Hurley v. Heart Physicians, P.C., 298 Conn. 371, 399 (2010). Accordingly, the court held that “plaintiffs' claims as to 'undue influence from the court' and 'intense pressure and embarrassment' are wholly unsupported by the record.” Id.

Addressing juror confusion is largely in the hands of the judge (and therefore out of your control). It is, therefore, imperative to listen to the judge's conversation with the juror as objectively as possible. If the judge is being measured and neutral, stay quiet. If you sense that the judge may be crossing the line ' from a neutral inquiry to potentially coercive prompting ' you should consider whether and how to intervene in order to diffuse the tension. Although immediate confirmation of the verdict is preferable, you would certainly prefer additional deliberation to an additional trial.

If in fact a confused or indecisive juror is destroying your unanimous verdict, the judge has two choices: She can either request further deliberation or else declare an immediate mistrial. Needless to say, you should strenuously argue that the jury should be instructed to continue deliberations. See, e.g., Lee v. Hershberger, No. RDB-09-2203, 2011 WL 6258466, *8-9 (D. Md. Dec. 13, 2011) (no error in court ordering further deliberation after juror indicated during polling that she did not agree with verdict; not coercive for judge to inform jurors verdict had to be unanimous or else hopelessly deadlocked).

Post-Trial Interviews with Jurors

Most trial lawyers, the authors included, like to speak to jurors after a case is over. Jurors can be a valuable resource for learning about which witnesses were most credible or whether the use of trial technology was effective. Although some courts recognize that it is a “laudable and most desirable endeavor” for an attorney to seek to improve his or her trial skills, Sixberry v. Buster, 88 F.R.D. 561, (E.D. Pa. 1980), there remains a general hostility to post-trial contact between lawyers and jurors. See, e.g., id. (“We cannot and will not go against the strong and well established policy of the Federal courts ' which frowns on post-trial inquiries to jurors in a case such as this.”)

Unfortunately, post-trial contact with jurors does not always serve the laudatory educational purposes described above. In fact, some lawyers contact jurors for the express purpose of discovering information that could be used to impeach an unfavorable verdict. If you encounter such an adversary, the starting point is the permissibility of post-trial contact with jurors, which varies from jurisdiction to jurisdiction. Under Tennessee law, for example, some manner of post-trial contact is viewed as a protected right. See State v. Gaddis, E2011-00003-CCA-R3CD, 2012 WL 2370636 (Tenn. Crim. App. June 25, 2012) (“Although local court rules may place some reasonable minor restrictions on the time, place, and manner of this communication, they may not place any additional restrictions on an attorney's right to informally interview jurors that work to contravene the attorney's right as established in Supreme Court Rule 8.”) The Model Rules of Professional Conduct take a similarly permissive approach:

A lawyer shall not:

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment

ABA Mod. Rules. Prof. Cond. 3.5.

Most jurisdictions, however, are more restrictive when it comes to post-trial contact. The Second Circuit Court of Appeals, for example, prohibits post-trial contact with jurors without first providing notice to the court and opposing counsel. See U.S. v. Schwarz, 283 F.3d 76, 98 (2nd Cir. 2002). As the Second Circuit explained in an earlier case, such a rule is necessary because “a serious danger exists that, in the absence of supervision by the court, some jurors, especially those who were unenthusiastic about the verdict or have grievances against fellow jurors, would be led into imagining sinister happenings which simply did not occur or into saying things which, although inadmissible, would be included in motion papers and would serve only to decrease public confidence in verdicts.” U.S. v. Moten, 582 F.2d 654, 665 (2nd Cir. 1978). Information obtained in violation of these rules is properly excluded. See U.S. v. Sattar, 395 F. Supp. 2d 66, 76-77 (S.D.N.Y. 2005) (citing Tanner v. U.S., 483 U.S. 107, 126 (1987)).

Florida places even more restrictions on post-trial contact with jurors. Such contact is presumptively prohibited, except:

A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within 10 days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.

Fla. R. Civ. P. 1.431.

Thus, in Florida, a juror interview will only be allowed upon the presentation of “sworn factual allegations that, if true, would require a trial court to order a new trial.” State Farm Mut. Auto. Ins. Co. v. Lawrence, 65 So. 3d 52, 56 (2d. Fla. Dist. Ct. App. 2011) (holding that the trial court abused its discretion by denying motion for post-trial interviews with three jurors where there was reasonable grounds to believe jurors concealed information during voir dire).

In other states, the law on this issue is un- or under-developed. In Connecticut for example, “there is no statute or practice book rule precluding an attorney from contacting jurors when a trial is over. Indeed, there is no statute or rule even requiring counsel to seek court permission before engaging in such contacts.” Struski v. Big Y Foods, Inc., CV 970137108S, 2000 WL 1429478, *3 (Conn. Super. Ct. Sept. 11, 2000). The court in Struski, however, recognized the potential abuse associated with post-trial contact:

Giving disgruntled, losing litigants and their attorneys unfettered access to jurors certainly raises significant concerns. Consequently, while the court authorized the defendant to interview jurors, it instructed counsel to conduct the interviews “based on” specific prefatory language and questions provided in an appendix to the decision.

Id. at *5-6.

It is imperative for the practitioner to be fully conversant in the particular rules of his or her jurisdiction. If your adversary's post-trial contact with jurors violates those rules, that may provide a basis for excluding the evidence developed through such contact. If the rules of a particular jurisdiction are not clear or are otherwise ambiguous, it may be helpful to raise this issue with the court and request guidance. If nothing else, you may be able to prompt the court to limit post-trial contact or otherwise impose conditions that will minimize the potential for your adversary to create a verdict-impeaching issue.

Juror Testimony and Affidavits

Juror testimony ' often in the form of an affidavit obtained in a post-trial interview ' provides another way for disappointed litigants to attack the validity of a jury's verdict. Fortunately, most, if not all, jurisdictions have rules that significantly restrict the admissibility of juror testimony. In the federal courts, Federal Rule of Evidence 606(b)(1) precludes consideration of a juror's affidavit or testimony concerning “any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processing concerning the verdict on indictment.” Under the Federal Rules, a juror would be permitted to testify, however, about certain areas related to actual juror misconduct, including whether “(A) extraneous prejudicial information was improperly brought to the jury's attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.” Fed. R. Evid. 606(b)(2). Whether by statute, court law or common law, most states have adopted some form of these rules. See, e.g., Tenn. R. Evid. 606(b) (similar to Fed. R. Evid. 606 with slight differences in the language).

Although the federal rule ' and its state corollaries ' are seemingly straightforward, they are nevertheless subject to attempted abuse. To circumvent the prohibitions of such rules, your adversary may attempt to mischaracterize the purpose for which the affidavit is submitted. For example, in Baugh v. Cuprum S.A. De C.V., No. 08 C 4204 (RRP), 2012 WL 1032614, *5-6 (N.D. Ill. Mar. 27, 2012), the plaintiff argued that the trial court erred by allowing a ladder to be taken into the jury room during the deliberations. In support of his motion for a new trial, the plaintiff submitted an affidavit from one of the jurors; although the trial court had instructed the jurors that they were not to attempt to reconstruct the accident, the affidavit stated that five of the jurors had in fact climbed the exemplar ladder. Id. at *5.

Pointing to the prohibitions of Rule 606(b), the defendant argued that the court could not consider the information contained in the juror's affidavit because it related to the jury's deliberations. The plaintiff argued that the information contained in the affidavit was within the exception that allows jury testimony on the issue of whether extraneous prejudicial information was improperly brought to the jury's attention. Id. The trial court rejected the plaintiff's argument:

There has never been any suggestion that the jurors considered any “extraneous information.” Plaintiff's counsel well knew that the jurors wanted access to the exemplar ladder that had stood in the courtroom during portions of the trial. In any event, even if the court were to consider evidence of the juror's activities ' nothing about those activities suggests that a new trial is warranted.

Id. at *6.

In the best-case scenario, the court will decline to consider an improper jury affidavit. Depending on the rules in your jurisdiction, this outcome can be effectuated by a motion to strike. See, e.g., Hitachi Medical Systems America, Inc. v. Branch, No. 5:09 CV 01575 (BYP), 2012 WL 3853004, *1-2 (N.D. Oh. Sept. 5, 2012). In Hitachi, the plaintiff supported its motion for a new trial with an affidavit from one of the jurors. The defendants moved to strike that affidavit. Hitachi attempted to avoid Rule 606(b) “by arguing that its motion for a new trial 'is not dependent upon the juror letter ' for support.” Id. at *2. Although Hitachi also described its evidence as merely “anecdotal,” the court was not convinced:

Assuming, arguendo, that the court disregarded Hitachi's “anecdotal evidence,” Hitachi's remaining argument ' still probes into the juror's mental processes, which Rule 606(b) expressly prohibits. Simply seeking to inquire as to the reasons for the verdict is not a proper subject of inquiry.

Id. The court granted defendants' motion to strike the affidavit for the same reasons. Id.

There was a similar situation in the Hurley case. In support of their motion for a new trial, the plaintiffs submitted an “affidavit” from the juror who had exhibited confusion during the jury poll. (We use quotation marks because the “affidavit” was actually a typed version of plaintiff's counsel's hand-written transcription of the juror's verbal responses to questions posed during an in-person interview.) Some questions were leading: “Did you feel undue pressure or influence to return a verdict by a certain time or within a certain time after the jury deliberations began? For example, did you feel undue pressure or influence to return a verdict before the close of the trial day on Friday, Jan. 18, 2008?” Others were overly broad and under-defined: “Was the verdict determined in any improper manner?”

In response to one of the questions, the juror stated that he had felt pressured by the judge in open court. The majority of the juror's responses, however, contained information about the jury's internal deliberation. For example, the juror stated that the jury as a whole had hardly discussed the evidence and were dismissive when he raised questions. Based primarily on the juror's affidavit, the plaintiffs asserted they were entitled to a new trial both because: 1) the verdict was not unanimous; and 2) there was juror misconduct.

In its reply papers, the defendant argued the juror's affidavit was inadmissible on its face. Under Connecticut law, “[u]pon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined.” Conn. Practice Book ' 16-34. In addition to other issues, this rule has been construed to prohibit any evidence or testimony “that one or more jurors misunderstood the judge's instructions; or were influenced by an illegal paper or by an improper remark of a fellow juror; or assented because of weariness or illness or importunities ' or had been influenced by inadmissible evidence ' or had by any other motive or belief been led to their decisions.” Aillon v. State, 168 Conn. 541, 550 n. 3 (1975). The assertions of the juror in question, the defendant argued, were entirely within the conduct prohibited by the rule and the relevant caselaw.

The court agreed and denied the plaintiffs' motion for mistrial. See Hurley v. Heart Physicians, P.C., No. X08CV000177475S, 2008 WL 4307573 (Conn. Super. Ct. Aug. 25, 2008). The court held that “[a]side from a brief reference to coercion by the court, the claim of misconduct is based entirely on verbal and written statements made by [the juror] to plaintiff's counsel outside of the courtroom after the jury had been dismissed ' Except for his reference to the individual polling in the courtroom, everything else [the juror] relates occurred in the jury room during deliberations.” Id. at *5. Consequently, the court held that all of the allegations concerning jury misconduct were within Practice Book 16-34, Connecticut's exclusionary rule. Id. at *6. (It is debatable whether the affidavit could have been properly received if its subject were limited to the juror's subjective impression that he had felt pressured by the court during the jury poll.) On appeal, the plaintiffs did not challenge the trial court's exclusion of the juror's “affidavit,” and therefore the Connecticut Supreme Court did not consider those statements in its opinion affirming the complete defense verdict. See Hurley v. Heart Physicians, P.C., 298 Conn. 371, 392 n. 16 (2010).

The conclusion of this article will address some of the problems caused by jurors' use of technology and social media and offers some helpful tips for avoiding the most prevalent forms of juror misconduct.

Christiana Jacxsens is a Shareholder in Greenberg Traurig, LLP's Atlanta office. Daniel I.A. Smulian is an Associate in the firm's New York office. They focus their respective practices on defending product liability matters involving pharmaceutical and medical device companies.

Imagine this: For six weeks of testimony, you battled against your adversary. The plaintiff was initially sympathetic, but your cross-examination exposed a more nuanced story and reinforced the defense themes. The plaintiff's expert was competent, but you showed the jury the holes in his science and assumptions. Even though it was a six-week trial, it only takes two hours for the jury to reach a verdict. You are cautiously optimistic.

Back in the courtroom, the jury re-enters the box for what they believe is the final time. The judge asks the jury foreperson to read the verdict: “We, the jury, find in favor of the defendant.” You are ecstatic. Then, this happens:

Your adversary asks the judge to poll the jury. The first three jurors successively affirm the verdict in your client's favor. When the court asks the fourth juror whether he agrees with the verdict, he stumbles: “Well, uh, I'm not sure I understand ' ” Alarm bells go off in your head. The clerk again asks Juror No. 4 whether or not he agrees with the veredict. First, he says, “ No,” then he says, “Yes.” As the clerk attempts to clarify the question, Juror No. 4 is audibly confused:

“You want me to say it was a hard decision ' ” You are not breathing. Finally, the judge explains the polling process to Juror No. 4, and the clerk reads the qustion again. “ Juror Number Four,” the clerk says, “Is that your verdict?” “Yes,” answers Juror No. 4. The judge accepts the verdict and discharges the jury.

The plaintiffs immediately move for a mistrial on the grounds that the verdict was not unanimous. The judge invites the parties to provide simultaneous written submissions in seven days. In the course of briefing, the plaintiffs produce an “affidavit” from Juror No. 4. (It is actually a transcription of an alleged conversation between opposing counsel and this juror.) In the affidavit, Juror No. 4 states that he did not agree with the verdict and that he felt pressure from the judge in open court. Among other revelations, he also states that he was pressured by the other jurors to conform his verdict to theirs, and that the other jurors disregarded the court's instructions during their deliberation.

The above scenario is based on a true story: In Connecticut, the trial court subsequently denied the plaintiff's motion for a new trial, and the Connecticut Supreme Court ultimately affirmed both that decision and the jury's verdict in the defendant's favor. See Hurley v. Heart Physicians , P.C. , 3 A.D.3d 892 (Conn. 2010).

The purpose of this article is to help the practitioner preserve his or her favorable trial verdict against allegations of juror impropriety. To that end, Part One herein identifies some of the most common juror-related pitfalls, and provides strategies for countering the allegations and tactics that could give rise to a new trial.

Jury Polls, Post-Trial Interviews and Juror Affidavits

Jury Polls and Juror Confusion

Whether a civil litigant has an unfettered right to poll the jury is an unsettled question. For example, the Supreme Court has stated:

That, generally, the right to poll a jury exists may be conceded. ' It is not a matter which is vital, is frequently not required by litigants; and while it is an undoubted right of either, it is not that which must be found in the proceedings in order to make a valid verdict.

Humphries v. District of Columbia , 174 U.S. 190, 19 S.Ct. 637, 638-39 (1899).

Some lower courts have construed Humphries “as an indication that the Supreme Court does not consider the right constitutionally protected.” Audette v. Isaksen Fishing Corp. , 789 F.2d 956, 959 (1st Cir. 1986). Still others have questioned, but not decided, “whether a party may demand a poll of the jury in a civil action as a matter of right or whether that decision is commended to the discretion of the district court upon motion by counsel.” Kazan v. Wolinski , 721 F.2d 911, 916 n. 5 (3d Cir. 1983).

Notably, while the Federal Rules of Criminal Procedure codify the right to a jury poll in criminal cases, see Fed. R. Crim. Proc. 31(d), the Federal Rules of Civil Procedure do not contain a similar provision.

As reflected by the above cases, the rules concerning jury polls vary from jurisdiction to jurisdiction. Unless yours has a specific rule to the contrary, you should assume that a request for a jury poll is, if not a right, at least within the trial court's discretion. Accordingly, there is little to be gained by objecting to a request to poll the jury. If your adversary declines to request a poll, however, he or she cannot raise that issue on appeal. See, e.g., Audette, 789 F.2d at 959. Similarly, a party waives his right to object to the polling procedure employed by the court unless he asserts that objection before the jury is discharged. See, e.g., Rivera v. Conway , 350 F. Supp. 2d 536, 547 (S.D.N.Y. 2004).

Apparent Discrepancies

A larger concern arises when there is an apparent discrepancy between the individual verdicts stated during polling and the unanimous verdict announced by the foreperson. As an initial matter, it is critical to determine the nature of the discrepancy. Is the juror merely confused about the polling process? Or has your unanimous verdict suddenly vanished? Given the choice between the two, you would much prefer to resolve the confusion (and retain the verdict in your client's favor).

As noted above, the juror in the Hurley case ultimately affirmed the verdict in favor of the defendant. Thus, the plaintiff argued on appeal, once the trial court appropriately dispelled the juror's confusion about the polling process, it properly accepted the juror's final answer ' that “yes,” the verdict was his ' and accepted the unanimous verdict. The plaintiffs, in contrast, argued that the verdict was not unanimous; as they saw it, the trial court coerced the dissenting juror into accepting a verdict that was not his own. Accordingly, the characterization of the trial court's conduct during polling became one of the critical questions on appeal.

Connecticut, where Hurley was venued, has had cases on both ends of the spectrum. In Tough v. Ives , 162 Conn. 274, 277-78 (1972), a juror exhibited confusion about the polling process by stating that her verdict was for the plaintiff, contrary to the defense verdict that had been presented to the court by the jury as a whole. After an explanation by the court, the juror indicated she had initially found for the plaintiff, but had subsequently cast her final vote for the defendant. Id. The Connecticut Supreme Court found that the juror's final statement was sufficient to establish her assent to the verdict. With respect to the judge's conduct, the court explained:

[n]eutral inquiry by the trial judge as to the meaning of a juror's response is not erroneous. Only when such inquiry is coercive or seeks explanations, motives or information in the jury room should it be found objectionable. The action by the trial court here at issue is wholly different. In the case at bar, there was no argument, by either court or counsel, with the juror. Nor did the court require an explanation from the juror as to whether she changed her mind or the reasons therefor. The questions asked sought only to elucidate the meaning of her statement; there was no further inquiry. When the juror stated that her verdict was for defendant, there was no reason to send the jury back for further deliberation, and the court was not in error accepting the verdict.

Id. at 280.

In support of their argument, the plaintiffs relied primarily on State v. Bell , 13 Conn. App. 420 (1988). In that case, “the polled juror, after initially expressing doubt by her inability to state a verdict to the robbery count, was led by repeated pollings by the clerk at the court's insistence to five progressive responses culminating in a verdict of guilty to the charge.” Id. at 430-31. After carefully examining the nature of the exchange between the trial court and the juror, the appellate court determined that “such conducement of the juror's verdict deprived the defendant of his right to a unanimous verdict. This polling process was improper.” Id.

In affirming the verdict in favor of the defendant in Hurley, the Connecticut Supreme Court rejected both plaintiffs' characterization of the trial court's conduct and her reliance on State v. Bell:

The exchange in Bell is distinguishable from the brief and neutral inquiry undertaken by the trial court in the present case. Whereas the juror's response in Bell ' indicated that she had not decided whether the defendant was guilty of the polled charge, [the juror in question]'s first statement ' demonstrated that he was confused with the polling process. The trial court was not presented with any indication that [the juror] had not decided the issue of the defendant's liability. To the contrary, [the juror] repeatedly demonstrated confusion with the polling process, both before and after his remark ' “

Hurley v. Heart Physicians, P.C. , 298 Conn. 371, 399 (2010). Accordingly, the court held that “plaintiffs' claims as to 'undue influence from the court' and 'intense pressure and embarrassment' are wholly unsupported by the record.” Id.

Addressing juror confusion is largely in the hands of the judge (and therefore out of your control). It is, therefore, imperative to listen to the judge's conversation with the juror as objectively as possible. If the judge is being measured and neutral, stay quiet. If you sense that the judge may be crossing the line ' from a neutral inquiry to potentially coercive prompting ' you should consider whether and how to intervene in order to diffuse the tension. Although immediate confirmation of the verdict is preferable, you would certainly prefer additional deliberation to an additional trial.

If in fact a confused or indecisive juror is destroying your unanimous verdict, the judge has two choices: She can either request further deliberation or else declare an immediate mistrial. Needless to say, you should strenuously argue that the jury should be instructed to continue deliberations. See, e.g., Lee v. Hershberger, No. RDB-09-2203, 2011 WL 6258466, *8-9 (D. Md. Dec. 13, 2011) (no error in court ordering further deliberation after juror indicated during polling that she did not agree with verdict; not coercive for judge to inform jurors verdict had to be unanimous or else hopelessly deadlocked).

Post-Trial Interviews with Jurors

Most trial lawyers, the authors included, like to speak to jurors after a case is over. Jurors can be a valuable resource for learning about which witnesses were most credible or whether the use of trial technology was effective. Although some courts recognize that it is a “laudable and most desirable endeavor” for an attorney to seek to improve his or her trial skills, Sixberry v. Buster , 88 F.R.D. 561, (E.D. Pa. 1980), there remains a general hostility to post-trial contact between lawyers and jurors. See, e.g., id. (“We cannot and will not go against the strong and well established policy of the Federal courts ' which frowns on post-trial inquiries to jurors in a case such as this.”)

Unfortunately, post-trial contact with jurors does not always serve the laudatory educational purposes described above. In fact, some lawyers contact jurors for the express purpose of discovering information that could be used to impeach an unfavorable verdict. If you encounter such an adversary, the starting point is the permissibility of post-trial contact with jurors, which varies from jurisdiction to jurisdiction. Under Tennessee law, for example, some manner of post-trial contact is viewed as a protected right. See State v. Gaddis, E2011-00003-CCA-R3CD, 2012 WL 2370636 (Tenn. Crim. App. June 25, 2012) (“Although local court rules may place some reasonable minor restrictions on the time, place, and manner of this communication, they may not place any additional restrictions on an attorney's right to informally interview jurors that work to contravene the attorney's right as established in Supreme Court Rule 8.”) The Model Rules of Professional Conduct take a similarly permissive approach:

A lawyer shall not:

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment

ABA Mod. Rules. Prof. Cond. 3.5.

Most jurisdictions, however, are more restrictive when it comes to post-trial contact. The Second Circuit Court of Appeals, for example, prohibits post-trial contact with jurors without first providing notice to the court and opposing counsel. See U.S. v. Schwarz , 283 F.3d 76, 98 (2nd Cir. 2002). As the Second Circuit explained in an earlier case, such a rule is necessary because “a serious danger exists that, in the absence of supervision by the court, some jurors, especially those who were unenthusiastic about the verdict or have grievances against fellow jurors, would be led into imagining sinister happenings which simply did not occur or into saying things which, although inadmissible, would be included in motion papers and would serve only to decrease public confidence in verdicts.” U.S. v. Moten , 582 F.2d 654, 665 (2nd Cir. 1978). Information obtained in violation of these rules is properly excluded. See U.S. v. Sattar , 395 F. Supp. 2d 66, 76-77 (S.D.N.Y. 2005) (citing Tanner v. U.S. , 483 U.S. 107, 126 (1987)).

Florida places even more restrictions on post-trial contact with jurors. Such contact is presumptively prohibited, except:

A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within 10 days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.

Fla. R. Civ. P. 1.431.

Thus, in Florida, a juror interview will only be allowed upon the presentation of “sworn factual allegations that, if true, would require a trial court to order a new trial.” State Farm Mut. Auto. Ins. Co. v. Lawrence , 65 So. 3d 52, 56 (2d. Fla. Dist. Ct. App. 2011) (holding that the trial court abused its discretion by denying motion for post-trial interviews with three jurors where there was reasonable grounds to believe jurors concealed information during voir dire ).

In other states, the law on this issue is un- or under-developed. In Connecticut for example, “there is no statute or practice book rule precluding an attorney from contacting jurors when a trial is over. Indeed, there is no statute or rule even requiring counsel to seek court permission before engaging in such contacts.” Struski v. Big Y Foods, Inc., CV 970137108S, 2000 WL 1429478, *3 (Conn. Super. Ct. Sept. 11, 2000). The court in Struski, however, recognized the potential abuse associated with post-trial contact:

Giving disgruntled, losing litigants and their attorneys unfettered access to jurors certainly raises significant concerns. Consequently, while the court authorized the defendant to interview jurors, it instructed counsel to conduct the interviews “based on” specific prefatory language and questions provided in an appendix to the decision.

Id. at *5-6.

It is imperative for the practitioner to be fully conversant in the particular rules of his or her jurisdiction. If your adversary's post-trial contact with jurors violates those rules, that may provide a basis for excluding the evidence developed through such contact. If the rules of a particular jurisdiction are not clear or are otherwise ambiguous, it may be helpful to raise this issue with the court and request guidance. If nothing else, you may be able to prompt the court to limit post-trial contact or otherwise impose conditions that will minimize the potential for your adversary to create a verdict-impeaching issue.

Juror Testimony and Affidavits

Juror testimony ' often in the form of an affidavit obtained in a post-trial interview ' provides another way for disappointed litigants to attack the validity of a jury's verdict. Fortunately, most, if not all, jurisdictions have rules that significantly restrict the admissibility of juror testimony. In the federal courts, Federal Rule of Evidence 606(b)(1) precludes consideration of a juror's affidavit or testimony concerning “any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processing concerning the verdict on indictment.” Under the Federal Rules, a juror would be permitted to testify, however, about certain areas related to actual juror misconduct, including whether “(A) extraneous prejudicial information was improperly brought to the jury's attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.” Fed. R. Evid. 606(b)(2). Whether by statute, court law or common law, most states have adopted some form of these rules. See, e.g., Tenn. R. Evid. 606(b) (similar to Fed. R. Evid. 606 with slight differences in the language).

Although the federal rule ' and its state corollaries ' are seemingly straightforward, they are nevertheless subject to attempted abuse. To circumvent the prohibitions of such rules, your adversary may attempt to mischaracterize the purpose for which the affidavit is submitted. For example, in Baugh v. Cuprum S.A. De C.V. , No. 08 C 4204 (RRP), 2012 WL 1032614, *5-6 (N.D. Ill. Mar. 27, 2012), the plaintiff argued that the trial court erred by allowing a ladder to be taken into the jury room during the deliberations. In support of his motion for a new trial, the plaintiff submitted an affidavit from one of the jurors; although the trial court had instructed the jurors that they were not to attempt to reconstruct the accident, the affidavit stated that five of the jurors had in fact climbed the exemplar ladder. Id. at *5.

Pointing to the prohibitions of Rule 606(b), the defendant argued that the court could not consider the information contained in the juror's affidavit because it related to the jury's deliberations. The plaintiff argued that the information contained in the affidavit was within the exception that allows jury testimony on the issue of whether extraneous prejudicial information was improperly brought to the jury's attention. Id. The trial court rejected the plaintiff's argument:

There has never been any suggestion that the jurors considered any “extraneous information.” Plaintiff's counsel well knew that the jurors wanted access to the exemplar ladder that had stood in the courtroom during portions of the trial. In any event, even if the court were to consider evidence of the juror's activities ' nothing about those activities suggests that a new trial is warranted.

Id. at *6.

In the best-case scenario, the court will decline to consider an improper jury affidavit. Depending on the rules in your jurisdiction, this outcome can be effectuated by a motion to strike. See, e.g., Hitachi Medical Systems America, Inc. v. Branch, No. 5:09 CV 01575 (BYP), 2012 WL 3853004, *1-2 (N.D. Oh. Sept. 5, 2012). In Hitachi, the plaintiff supported its motion for a new trial with an affidavit from one of the jurors. The defendants moved to strike that affidavit. Hitachi attempted to avoid Rule 606(b) “by arguing that its motion for a new trial 'is not dependent upon the juror letter ' for support.” Id. at *2. Although Hitachi also described its evidence as merely “anecdotal,” the court was not convinced:

Assuming, arguendo, that the court disregarded Hitachi's “anecdotal evidence,” Hitachi's remaining argument ' still probes into the juror's mental processes, which Rule 606(b) expressly prohibits. Simply seeking to inquire as to the reasons for the verdict is not a proper subject of inquiry.

Id. The court granted defendants' motion to strike the affidavit for the same reasons. Id.

There was a similar situation in the Hurley case. In support of their motion for a new trial, the plaintiffs submitted an “affidavit” from the juror who had exhibited confusion during the jury poll. (We use quotation marks because the “affidavit” was actually a typed version of plaintiff's counsel's hand-written transcription of the juror's verbal responses to questions posed during an in-person interview.) Some questions were leading: “Did you feel undue pressure or influence to return a verdict by a certain time or within a certain time after the jury deliberations began? For example, did you feel undue pressure or influence to return a verdict before the close of the trial day on Friday, Jan. 18, 2008?” Others were overly broad and under-defined: “Was the verdict determined in any improper manner?”

In response to one of the questions, the juror stated that he had felt pressured by the judge in open court. The majority of the juror's responses, however, contained information about the jury's internal deliberation. For example, the juror stated that the jury as a whole had hardly discussed the evidence and were dismissive when he raised questions. Based primarily on the juror's affidavit, the plaintiffs asserted they were entitled to a new trial both because: 1) the verdict was not unanimous; and 2) there was juror misconduct.

In its reply papers, the defendant argued the juror's affidavit was inadmissible on its face. Under Connecticut law, “[u]pon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined.” Conn. Practice Book ' 16-34. In addition to other issues, this rule has been construed to prohibit any evidence or testimony “that one or more jurors misunderstood the judge's instructions; or were influenced by an illegal paper or by an improper remark of a fellow juror; or assented because of weariness or illness or importunities ' or had been influenced by inadmissible evidence ' or had by any other motive or belief been led to their decisions.” Aillon v. State , 168 Conn. 541, 550 n. 3 (1975). The assertions of the juror in question, the defendant argued, were entirely within the conduct prohibited by the rule and the relevant caselaw.

The court agreed and denied the plaintiffs' motion for mistrial. See Hurley v. Heart Physicians, P.C., No. X08CV000177475S, 2008 WL 4307573 (Conn. Super. Ct. Aug. 25, 2008). The court held that “[a]side from a brief reference to coercion by the court, the claim of misconduct is based entirely on verbal and written statements made by [the juror] to plaintiff's counsel outside of the courtroom after the jury had been dismissed ' Except for his reference to the individual polling in the courtroom, everything else [the juror] relates occurred in the jury room during deliberations.” Id. at *5. Consequently, the court held that all of the allegations concerning jury misconduct were within Practice Book 16-34, Connecticut's exclusionary rule. Id. at *6. (It is debatable whether the affidavit could have been properly received if its subject were limited to the juror's subjective impression that he had felt pressured by the court during the jury poll.) On appeal, the plaintiffs did not challenge the trial court's exclusion of the juror's “affidavit,” and therefore the Connecticut Supreme Court did not consider those statements in its opinion affirming the complete defense verdict. See Hurley v. Heart Physicians, P.C. , 298 Conn. 371, 392 n. 16 (2010).

The conclusion of this article will address some of the problems caused by jurors' use of technology and social media and offers some helpful tips for avoiding the most prevalent forms of juror misconduct.

Christiana Jacxsens is a Shareholder in Greenberg Traurig, LLP's Atlanta office. Daniel I.A. Smulian is an Associate in the firm's New York office. They focus their respective practices on defending product liability matters involving pharmaceutical and medical device companies.