In U.S. Securities and Exchange Commission v. Sargent, the U.S. Court of Appeals for the First Circuit held, as a matter of first impression, that the denial of a request to poll individual jurors is per se reversible error under Federal Rule of Civil Procedure 48(c), notwithstanding counsel’s failure to cite Rule 48 at the time of the initial request. ABA Litigation Section leaders note that his type of procedural error can be avoided if litigators are always prepared to cite specific, controlling authority to the district court before it rules.
The Securities and Exchange Commission (SEC) filed a civil enforcement action against a defendant in the U.S. District Court for the District of Massachusetts. After a 10-day trial, the jury returned a unanimous verdict against the defendant. Before the jury left the courtroom, the defendant’s counsel asked to poll the jury, which the district court denied. The next day, defense counsel informed the SEC that he believed the court committed reversible error. The SEC immediately filed an emergency motion to recall the jurors, which the district court denied. The following day, the defendant moved for a new trial citing—for the first time—Rule 48(c).
Rule 48(c) provides that “After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually.” Under Rule 48, if the poll reveals that the verdict lacks the requisite number of supporting jurors, the district court may direct the jury to deliberate further or may order a new trial.
In Sargent, at a hearing on the motion for new trial, the district judge acknowledged that he had violated Rule 48(c), and that he “simply did not know the rule.” The judge recused himself from deciding the motion for new trial. The newly-assigned judge granted a new trial, concluding that the defendant’s invocation of Rule 48(c) for the first time in its written motion was timely. On appeal, the SEC did not challenge the timing of the defendant’s invocation of Rule 48(c), and the appellate court held that because the Seventh Amendment to the U.S. Constitution protects the right to a civil jury trial, it is per se reversible error to deny a jury poll under Rule 48(c).
This procedural fight might have been unnecessary if counsel had cited Rule 48 when asking to poll the jury. “Counsel should know every rule of trial procedure,” advises Judge Barbara M. G. Lynn, Dallas, TX, a senior U.S. District Judge and cochair of the ABA Litigation Section’s 50th Anniversary Task Force. “If you are asking a judge to do something provided in the rules, always know and cite the supporting rule,” she urges. Counsel can use an internet search or a pocket copy of the procedural rules to quickly cite specific rules to the court, adds Judge Lynn.
The district judge in Sargent who denied the jury poll “is among the most experienced trial judges in the United States [and] a hero in the federal judiciary,” Judge Lynn notes. He wisely recused himself from deciding the motion for new trial because he would not want to “grade his own paper,” she explains.
But even the most experienced judges will welcome help from counsel. “Judges are human,” remarks Michael S. LeBoff, Newport Beach, CA, cochair of the Section’s Young Lawyers Leadership Program. “Both seasoned and younger lawyers should be sure to educate the judge respectfully when the need arises. Attorneys must know the procedural rules well so they can cite them,” recommends LeBoff.
Section leaders urge practicality when deciding whether to support or resist a procedural request from opposing counsel. “The big picture and that it is a larger loss to need to appeal and re-try a case,” cautions LeBoff. “And trial counsel generally does not want to give an opponent a black-and-white issue on appeal,” points out Clifford F. Kinney Jr., Charleston, WV, cochair of the Section’s Products Liability Litigation Committee.
One useful practice is to prepare in advance a bank of short “bench briefs” that can be readily tweaked and presented during trial to address procedural rules and legal theories when they arise, suggests Kinney. Bench briefs can be prepared before trial, be just a few pages in length, and yet provide citations to controlling legal authority for the court to consider before it rules. “Law firms should also consider mechanisms to update attorneys on procedural changes as they occur, such as hosting in-house continuing legal education events,” adds Kinney.
