By Dr. Ken Broda Bahm:
When you lose a billion dollars in trial, you tend to look for every opportunity to get around that verdict. That would appear to be the explanation for Samsung’s recent efforts to target juror misconduct in its recent patent trial with Apple. Samsung’s claims center on the foreman of the jury, who is said to have served an important role in answering the other jurors’ questions based on his own patent experience. In a recent filing, lawyers for the Korean technology company have argued that the foreman, Velvin Hogan, a retired engineer who had his own patents, failed to disclose in voir dire that he had been sued in 1993 by Seagate, a company with close ties to Samsung, and experienced personal bankruptcy as a result.
Samsung probably has a low chance of success based on courts’ understandable reluctance to overturn cases based on post-verdict probes into jury deliberations, as well as Federal Rule of Evidence 606(b) preventing juror testimony about statements or incidents that occurred during deliberation. While dishonesty during voir dire can, and has set aside verdicts in the past, the Apple/Samsung foreman claims that he honestly answered every question the judge asked and disclosed his patent experience. In an interview with Bloomberg, he wonders whether Samsung “let me in the jury just to have an excuse for a new trial if it didn’t go in their favor.” If that was the strategy, it was a pretty risky one. I’ll leave it to others more familiar with the case to determine whether this is one of the exceedingly rare situations where it makes sense to dig into the jury to support a new trial. In far more cases — I’d argue, all cases — it makes sense to dig into the jury for another reason: education. Instead of grilling jurors to find reasons to question or buttress the verdict, talk with them in order to learn what to do better next time.
Post-trial juror interviews don’t always happen, at least not in a systematic way. That is in no small way due to the restrictions placed on a party’s post-trial juror contact by many states and the federal courts. Even where there is flexibility within venues and among judges, however, various attitudes and suspicions can hold back inquiry. In this post, I’d like to look at some of the main attitudes that prevent or limit follow-up with your former jurors.
Reason 1: Judges Are Suspicious
Judges and court rules frequently discourage or prohibit post-trial contact. The reasons for those limits have to do not only with protecting the privacy of jurors who are now done with their service, but also speak to a reluctance to open the door for the losing attorneys to find reasons to question the verdict. That reluctance is understandable. If that is the attorney’s motivation, or if the attorney unintentionally drifts into cross-examination or deposition mode when talking to a former juror, then the suspicion is well-placed.
Solution: Keep Your Motives Pure and Clarify Those Motives to the Judge
One way to avoid the “cross-examination” problem, and a few other problems, is to use an independent interviewer. A member of the American Society of Trial Consultants, for example, is committed to interview purposes and techniques that are designed to gain information in an ethical manner, based on the Society’s Professional Standards and Practice Guidelines. Generally, as long as a judge or venue doesn’t prohibit post-trial contact, interviews are fair game. When you’re uncertain, it is always safest to check. If you are seeking a judge’s consent, either informally or via a motion, it may help to stress your use of an independent interviewer and the parameters of the interview. Judges will be opposed to a fishing expedition or a grill-fest, but most will support an honest effort to learn more in order to better present the next case.
Reason Two: Jurors Are Suspicious
The jurors themselves might be psychologically “done” with the case, or they simply may not want to be put on the spot. Of course, a primary principle of the interview is that they are voluntary. Most often, however, that isn’t a barrier. After investing no small amount of time and energy on a case, jurors are generally happy to talk about what they learned, what they decided, and why. Still, there are a few steps that interviewers ought to take in the first few moments of the interview, and throughout, in order to allay any possible concerns.
Solution: Make the Purpose of the Interview Explicit and Focus on Open-ended Inquiry
Here again, using an independent interview can be more comfortable and effective for the purpose of an interview. It can be jarring for dismissed jurors to suddenly find themselves speaking with someone they’ve, up to this point, been forbidden to speak to. But more importantly, jurors know who they’re talking to and can be reticent about saying anything they think the attorney could challenge. If they’re speaking with an interviewer identified only as “working with the attorneys” on the other hand, they are likely to supply more useful and candid information. The interviewer needs to have at least a basic understanding of the key case issues and witnesses, and a prepared outline of questions. At the start, the interviewer should make clear that the purpose of the interview is only to learn what the former juror sees as more effective and less effective. With that introduction, and with open-ended “what did you think?” kinds of questions, most jurors are happy to share.
Reason Three: Counsel Just Wants to Move on
Finishing a trial can feel like finishing a marathon. After a verdict — win or lose — there is often nothing that attorneys want more than just resting a bit, then moving to the next case. More practically, once a case reaches verdict, the attorney and client mindset is that, in most ways at least, the meter has stopped running. In that context, additional time and expense on a jury interview can feel unnecessary and potentially distracting.
Solution: Don’t Close the Case File Until You Know What to Do Next Time
When post-trial interviews are avoided just based on fatigue or costs, it is easy to understand the psychology, but harder to understand the logic. Before trial, after all, clients are often willing to spend many tens of thousands of dollars to conduct a mock trial to hear reactions to short summary arguments and quick witness clips. How much more useful is it to hear from those who heard and decided the entire case, especially when that information comes at a tiny fraction of a mock trial’s cost? Granted, the case is over, but most attorneys and many clients will experience a similar case in the near future. Failing to conduct the interview, when it is allowed, is just letting that valuable information walk out of the courthouse door.
In Samsung’s case, at this stage at least, it is clear that the company isn’t ready to move on and is also probably not much in the mood for “learning” from the verdict. That is understandable. Given the historically large award and the further potential for market effect, any questions at this stage should be pursued as long as the pursuit is legal. In the more typical case, however, the focus should change after the verdict, and in that context, a systematic interview focused on education will always be better than a grilling focused on continuing advocacy.
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Other Posts on Ethics in Advocacy and Litigation Consulting:
- Rely on Instructions to Curb the Socially Networked Juror
- Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)
- Jury Selection: Probe But Don’t Embarrass
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Photo Credit: The Burger Baroness, Flickr Creative Commons