March 31, 2015 Top Story

Mandamus Ruling Vacates New Trial Order

Failure to prove jury misconduct leads court to overturn grant of new trial

Ian S. Clement

When a party fails to properly demonstrate the adverse effect of jurors’ actions on the verdict, a trial court can abuse its discretion in granting a new trial for jury misconduct. In In re Zimmer, the Texas Fifth Court of Appeals found that a new trial was not appropriate where the plaintiff failed to show that the alleged jury bias and juror discussions outside of the deliberations affected the jury verdict.

Alleged Jury Misconduct

The plaintiff filed suit for permanent disability that he allegedly suffered as a result of the defect failure of two metal plates made by the defendant, which were designed to provide temporary stabilization following a serious motorcycle accident. During voir dire, the plaintiff and the defendant inquired if the jurors or their family members had ever suffered any serious physical injuries. One of the jurors that eventually voted with the majority, Venireman Young, did not answer affirmatively to the voir dire questions. The jury returned a 10–2 verdict in favor of the defendant.

The plaintiff filed a motion for new trial claiming jury misconduct because some jurors discussed the award of money to plaintiff outside of deliberations. The plaintiff also alleged improprieties because Young stated that the jury should not award plaintiff the money he was seeking because Young’s mother-in-law lost both her legs and was still working. Lastly, the plaintiff alleged that several jurors, including Young, lamented that awarding the money that the plaintiff sought would raise his social class.

In support of his new trial motion, the plaintiff filed affidavits, signed by the two dissenting jurors, which detailed the alleged misconduct. The two affidavits constituted the plaintiff’s proof of jury misconduct.

At the hearing on the motion, the plaintiff’s counsel argued the affidavits warranted a new trial but failed to move the affidavits into evidence or offer any live testimony to make a record of the statements contained in the affidavits. The defendant did not offer any evidence or argue that the court should deny plaintiff’s motion because he did not introduce any evidence to support the motion. The trial court granted the motion for new trial, finding that the actions described in the affidavits probably led to an improper verdict.

Plaintiff Failed to Prove Jury Misconduct

The defendant filed a writ of mandamus arguing that the trial court abused its discretion in ordering a new trial. The appellate court found that both procedurally and substantively the trial court abused its discretion. Procedurally, the juror affidavits alone were insufficient to grant a new trial, because Tex. R. Civ. P. 327(b) requires the trial court to hear evidence from the juror(s) in open court.

Substantively, the appellate court found that Young's failure to reveal his mother-in-law's injury did not constitute misconduct in the court's view because, under Texas law, an erroneous answer by a juror during voir dire warrants a new trial only if there is concealment by a jury where the jury question is direct, specific, and calls for disclosure. Texaco, Inc. v. Pennzoil, Co. The appellate court found that the trial court did not establish concealment because the plaintiff failed to establish how Young's mother-in-law suffered her injury.

The appellate court also noted that the plaintiff’s counsel never testified that he would have struck Young had he known about his mother-in-law. The court further found that even if plaintiff’s attorney testified that he would have struck Young, he never exercised a preemptory challenge against any other juror who disclosed a history with serious bodily injury.

With regard to the jury’s alleged improper discussions, the appellate court found the discussions outside of deliberations insufficient to warrant a new trial. The court noted that there must be some indication in the record that the alleged misconduct would most likely cause a juror to vote differently than he otherwise would have done absent the improper comments. The court found that the plaintiff failed to establish that, but for the improper discussions, the jury's verdict would have been different.

Attorneys “should act quickly to gather evidence if they suspect jury misconduct,” says John Kenneth Felter, Boston, MA, cochair of the ABA Section of Litigation’s Trial Evidence Committee. “The juror affidavits served only to demonstrate that the plaintiff had sufficient evidence to warrant an evidentiary hearing, says Andre’ B. Caldwell, Oklahoma City, OK, cochair of the Section of Litigation’s Trial Evidence Committee. Moreover, the appellate court’s ruling may echo a recent high court decision where “the United States Supreme Court held in Warger v. Shauers that Fed. R. Evid. 606 precludes a party seeking a new trial from relying upon the affidavit of a juror stating what another juror said in deliberations,” notes James A. King, Washington, D.C., cochair of the Section’s Trial Evidence Committee.

Learning about Jury Misconduct Post-Trial

“More often, trial counsel learns about jury misconduct after the verdict and after the jury has been discharged,” says Felter. “The first thing to do is to ascertain the governing statutory and case law and rules, including ethical rules, in the particular jurisdiction,” says Felter. “Assuming that there are no restrictions on approaching jurors post-discharge, trial counsel should interview jurors or engage private investigators to interview them and consider issuing subpoenas,” says Felter.

Ian S. Clement is an associate editor for Litigation News.

Keywords: jury, misconduct, deliberations, subpoena, affidavit, voir dire, questionnaire

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