October 03, 2018 Top Story

Poll of Potential Jurors Results in Six-Figure Sanction

Lawyer lacks candor in response to claim, court holds polling attorney tried to woo jurors

By Geoff A. Gannaway

Pretrial polls cross an ethical line when designed to sway opinions of potential jurors, an appellate court has held.

A Texas appellate court upheld a sanction of $133,415 against a defense attorney for his role in conducting a telephone survey that reached parties, witnesses, and potential jurors before trial. Although no rule expressly prohibits such polling, the attorney’s conduct warranted sanctions, according to the court.

When an attorney acts deliberately to change attitudes of potential jurors, a court may assess sanctions as part of its inherent power to protect the right to a fair and impartial jury. ABA Section of Litigation leaders advise that attorneys can protect themselves from similar sanctions. The attorney here could have avoided sanctions with carefully crafted questions, a limited potential poll audience, and a deferential response when challenged.

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