Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Attorneys may have a First Amendment right to interview jurors in trials in which they did not participate if their purpose is to educate a segment of the bar, according to a federal appellate court. Calling it a “novel” issue, a panel of the 10th U.S. Circuit Court of Appeals said it was “uncomfortable” addressing the question in the first instance. Instead, the three-judge panel on Feb. 3 ordered a district court to vacate its terse ruling rejecting a request by the Oklahoma Employment Lawyers Association and to reconsider the request in a “meaningful exercise of its discretion.” The employment lawyers’ group sought to contact jurors three years after their service in Clyma v. Sunoco Co., a job bias suit brought under the Americans with Disabilities Act. The association told the district court that it wanted access to the jurors “for the purpose of providing educational information to members of the bar regarding jury dynamics in employment law cases.” It argued that it had a First Amendment right of access to the jurors. A rule in the U.S. District Court for the Northern District of Oklahoma states: “At no time, including after a case has been completed, may attorneys approach or speak to jurors regarding the case unless authorized by the Court, upon written motion.” The three-judge panel, led by Senior Judge Bobby Baldock, said the association’s alleged First Amendment right “surely does not match the media’s right to access information for the purpose of informing the political thought and behavior of the general public.” However, the panel added, “OELA’s request for such access in order to prepare a program to educate a segment of the bar, despite countervailing concerns related to juror privacy and the administration of justice, may not be entirely devoid of First Amendment implications.” The panel said this issue of first impression “certainly requires the district court to exercise some discretion in ruling upon OELA’s application and therein lies the fundamental problem in this case.” By denying the association’s request without any substantive explanation, the panel could not find the district court exercised any meaningful discretion and that failure, it said, constituted an abuse of discretion. Because the underlying job bias case settled after a verdict in favor of the plaintiff, no one opposed the association’s request to contact the jurors. The 10th Circuit appointed two lawyers — former 10th Circuit clerks — as amicus curiae to address the First Amendment issue and a standing question. James Lebeck, an associate with Vinson & Elkins in Houston, and John Partridge, an associate with Gibson Dunn & Crutcher in Denver, said the district court’s order was “an impermissibly broad prior restraint on protected expressive activity.” The fact that the association was not involved in the underlying litigation was a distinction that mattered under the circuit’s precedent, they said, “because it diminishes the government’s interest in shielding jurors from contact. Because it had no role in the underlying litigation, OELA has little, if any, incentive to upset the jury’s verdict.” Joining Judge Baldock in sending the association’s request back to the district court were Judges Jerome Holmes and Eugene Siler of the 6th Circuit, sitting by designation.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.