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A Massachusetts task force is working to moderate the state’s rule barring attorneys from contacting jurors after a verdict-a ban that may be the most restrictive in the nation. “Lawyers have no other way of gauging their effectiveness,” said Kathy Cook, an associate at Keches & Mallen in Taunton, Mass., and vice chairwoman of the 14-member task force, which includes judges and law professors. In addition to serving an educational purpose, Cook said talking to jurors can help establish whether any misconduct took place and improve lawyers’ image through one-on-one communication. Cook also pointed out that a number of jurors want to speak to lawyers after a verdict to ask questions about the trial or give feedback. Lawyers throughout the country are not allowed to talk to jurors during trial, but rules about post-trial communication vary. In Massachusetts, lawyers may rarely talk to jurors after trial. When such contact is permitted by a judge, it takes place in a formal setting with a judge and opposing counsel typically present, Cook said. The rules are ambiguous as far as what lawyers should do if a juror initiates contact, so many lawyers don’t know what to do, Cook said. The Massachusetts Supreme Judicial Court declined comment. Many states, including Arkansas, Colorado, Indiana, Pennsylvania and South Dakota, have modeled their rules after that of the American Bar Association (ABA), which generally allows lawyers to communicate with jurors unless it is prohibited by court order, or the juror does not want to talk, or if the communication involves misrepresentation, coercion or harassment. Rules vary Other states have come up with their own language. Nevada grants lawyers the right to interview jurors to determine whether the verdict is subject to legal challenge. Some states, such as Florida, require lawyers to first file a written notice with a judge. Even within some states, rules may change from courthouse to courthouse. In Kentucky, some judges issue orders saying jurors cannot be contacted without written permission even though that is not a statewide rule, said Vince Aprile, of counsel to Louisville’s Lynch, Cox, Gilman & Mahan. Aprile said he is aware of at least one Kentucky case in which post-verdict discussion led to a discovery that the jury decided the verdict with a coin toss, which resulted in a new trial. State v. Givens, No. 99CR-1540. (Jefferson Co., Ky., Cir. Ct.). As part of the 2005 American Jury Project, the ABA said courts should instruct jurors that they have the right to discuss or refuse to discuss the verdict with anyone, including counsel. Unless prohibited by law, lawyers should be able to contact jurors after their service and courts should assist jurors who are being contacted despite their objections, the ABA said. “Lawyers can learn a great deal from talking to jurors and it can help to make us better lawyers,” said Patricia Refo, a partner in the Phoenix office of Snell & Wilmer who chaired the project, which led to 18 principles regarding jury trials. “But certainly it’s appropriate that jurors be carefully instructed that they are not required to talk to anybody.” Florida only allows lawyers to interview jurors to determine “if a verdict is subject to legal challenge,” and requires lawyers to file a notice of intention with the judge and the opposing counsel. Minnesota allows lawyers to contact jurors after trial, but case law discourages contact for the purpose of discovering juror misconduct, said Martin Cole, director of the Minnesota Office of Lawyers Professional Responsibility.

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