The 4th U.S. Circuit Court of Appeals has lifted a $14,655 sanction against the lead trial attorney for Ford Motor Co. in a personal injury case that was imposed as punishment for peeking at jury room notes at the close of a trial.
D. Alan Thomas and associate John I. Southerland, were called back to the jury room by a court clerk to collect exhibits following a defense verdict in a products liability case involving a Ford Explorer rollover in West Virginia.
After spotting a flip chart on an easel in the jury room full of juror deliberation notes, Thomas instructed Southerland to go back and copy the notes, according to the unpublished opinion in Shatz v. Ford Motor Co. (Thomas; Southerland), 06-1175.
Northern District of West Virginia Judge Frederick Stamp found out and accused the pair of bad faith, professional misconduct for alleged violation of a court rule against contact with jurors.
Thomas apologized and indicated it was done out of "curiosity" and "personal development" not for future litigation advantage. Stamp nonetheless imposed a $14,655 sanction against both lawyers.
The 4th Circuit overturned the order last week finding no bad faith or abuse of the litigation process and it found no violation of the rules because the case had concluded and jurors were gone. Notes were left where anyone entering the jury room would see them. "We have found no rule or law that makes sanctionable the viewing or copying of jurors' notes," the panel wrote. If there were any error, it would be "peeking under the top sheet and in copying that information," the ruling states.
"We think it is the right result," said Thomas, of Huie, Fernambucq & Stewart in Birmingham, Ala. "I like Judge Stamp, but we respectfully disagree," he said.
Thomas said it was "unfortunate that some members of the plaintiffs' bar have attempted to use this to preclude me from appearing in other cases," he said. Those efforts were unsuccessful, he said.
Christopher Brinkley, plaintiffs lawyer with the Masters Law Firm in Charleston, W. Va., said he too was sent to the jury room to pick up exhibits but never saw the easel and never took notes. "But every lawyer I talked to, regardless of practice, says we all know you don't go back in the jury room and you don't do that stuff." Brinkley said the contents of the notes have never been disclosed to him.
Why should the other side have that information, he asked.
Rebecca Betts, Thomas' lawyer said she does not believe it is generally understood by lawyers that copying juror notes from the flip chart would be improper. "People have very different views," said Betts, of Allen, Guthrie, McHugh & Thomas in Charleston.
The problem could have been avoided if the court clerk had retrieved the evidence from the jury room and distributed it to the lawyers, the panel noted.
Asked what he would do if it ever came up again, Thomas said, "In hindsight, I would ask the judge for permission."
