X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Jury trials are typically expensive and hard-fought battles, and it is no wonder that trial attorneys attempt to eke out full strategic benefit from their interaction with the most important participant in the trial � the jury. Over time, trial attorneys have employed a mix of traditional and nontraditional tools in this effort. These strategies (some good, some bad) can be viewed as taking place over three points in time: before the potential juror has even been mailed a jury summons; after the jury has been selected and before a verdict has been rendered; and following the verdict. If it seems that elections are nasty affairs with the latest sleazy tactics used to sway the opinions of potential voters, welcome to the world of “push-polling” a potential jury pool. This can include conducting so-called “community attitude” or “public opinion” surveys that can be used to support change of venue motions. See, e.g., State v. Fuhrmann, 925 P.2d 1162, 1171 (Mont. 1996). There are guidelines for the proper conduct of such surveys for purposes such as determining whether sufficient community prejudice exists to justify a change in venue. See, respectively, Federal Judicial Center Manual for Complex Litigation (3d) � 21.493; and Shari Seidman Diamond, Reference Guide on Survey Research, Reference Manual on Scientific Evidence (2d), at 229-268. However, it may be possible to conduct surveys in such a way as to create reactions to hot-button issues and leave behind a taint against the opposing party. See, e.g., State v. Owens, No. 547/99, 2001 N.Y. Misc. Lexis 463, at *3-*4 (Monroe Co., N.Y., Sup. Ct. April 2, 2001) (denying a motion to strike a notice to seek the death penalty; the defendant alleged that the prosecution used community-attitude surveys to engage in racial profiling, for the purpose of seating a jury whose racism would not be apparent during voir dire and/or to develop a trial strategy). Imagine that one’s opponent in an unfair trade practices case conducts a little “community attitude survey” by asking the following questions about one’s client, Local Defendant Company (LDC): •Are you familiar with a company called LDC? •Would you be upset if you knew that LDC tries to drive its competitors out of business so that consumers have to pay higher prices for LDC products? •Would you be concerned if you knew that LDC does not offer its employees health insurance? •Do you agree that LDC is “dirty,” “malicious,” “manipulative,” “unfair,” “deceptive” or “untrustworthy”? Depending upon the size of the community and the breadth of the survey, such questions could leave quite an impression on the potential jury pool. One of the advantages of push-polling is that the participant can be left with a recollection of the false information, but not recall the source of the information. See Elizabeth E. Loftus, “Creating False Memories,” 277 Sci. Am., No. 3 at 70-78 (Sept. 1997); Daniel M. Wegner et al., “Incrimination Through Innuendo: Can Media Questions Become Public Answers?,” 40 J. Personality & Soc. Psychol., No. 5 at 822-832 (1981). One may never discover one’s opponent’s tactics, because potential jurors may have forgotten about participation in such a survey by the time they are called to jury duty. One might think such tactics would not be possible in the highly regulated arena of attorney-venire contact, but one would be wrong, because the existing rules are not designed to deal with aggressive efforts to taint the potential jury pool in the twilight before the venire is identified. Rules applicable to attorney conduct in this period rely on good-faith adherence to counsel’s dual role as advocate for the client and as officer of the court. So, for instance, the model rule governing extrajudicial statements that are likely to taint a trial is as follows: “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 3.6(a). Model Rule 8.4 also may apply to this situation: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In such uncharted waters, courts may be reluctant to assume that an attorney has ignored the obligation to the court and to the fairness of the process to gain a tactical advantage in a trial. It is up to counsel to be aware that abuse is possible and to bring it promptly to the court’s attention. Any legitimate purpose for such opinion surveys can be achieved � and the possibility for abuse prevented � by asking the court for a limiting order; for example, an order restricting surveys to counties other than the jurisdiction from which the venire will be drawn. Or, if the survey proponent claims it is vital to survey the actual venire jurisdiction, the court could require submission and approval of survey questions. At the very least, bringing questionable conduct to the court’s attention will make a record for why voir dire of the venire must include questions about whether potential jurors recall participating in any surveys. The wealth of information available in electronic form has exponentially expanded the trial counsel’s ability to “data mine” information on the jurors in the jury box. The dramatization of this phenomenon can be seen in the 2003 film adaptation of John Grisham’s novel, The Runaway Jury, in which Gene Hackman plays an over-the-top jury consultant hired to guarantee a favorable jury verdict using any and all means necessary: According to film critic Roger Ebert, “Fitch stands in front of an array of computer and television monitors, apparently able to summon at will the secrets of all the prospective jurors. I was reminded a little of Tom Cruise manipulating those floating digital images in Minority Report. Spying on dozens of jury pool members is probably not legal, especially when blackmailable information is obtained.” Roger Ebert, “Runaway Jury,” Chicago Sun-Times, Oct. 17, 2003. See http://rogerebert.suntimes.com/apps/pbcs.dll/article?AID=/20031017/REVIEWS/310170305/1023. A real-world example of data-mining about jurors occurred in 2006, when defense attorneys in the trial of former Illinois Governor George Ryan apparently found information showing that as many as eight jurors, including the foreman, had given incorrect answers in their questionnaires. The resulting chaos nearly caused a mistrial and cast a pall over the entire proceeding, as described in news accounts. “The defense in former Gov. George Ryan’s trial launched a full-frontal assault on juror backgrounds in recent weeks in an apparent effort to plunge the proceeding into a mistrial . . . .Eight jurors were challenged in all, and the defense went to great lengths to dig up jurors’ backgrounds. They brought up one person’s DUI arrest from more than 40 years ago, and another juror’s purchase of a stolen bicycle.” See “8 Ryan jurors ‘on trial now.’ ” Chicago Sun-Times, April 20, 2006. See www.suntimes.com/news/georgeryantrial/31333,cst-nws-ryan203.articleprint. “If potential jurors knew the reward for six months of service would be lawyers digging into their past . . . would they want to serve? . . . ‘It is a game that somebody ought to put a stop to � trying to get dirt on jurors,’ said University of Chicago law Professor Albert Alschuler.” Abdon M. Pallasch, “Backlash against jurors questioned,” Chicago Sun-Times, April 21, 2006. See www.suntimes.com/news/georgeryantrial/31203,cst-nws-ryan211.article. Short of digging up information to try to kick jurors off the jury, it is conceivable that such information could be used simply to target trial strategy to jurors’ individual passions or fears. For instance, in the aforementioned Ryan trial, the defense, which apparently was the party actually digging up information on the jurors, argued in a motion for mistrial that some jurors might believe that the prosecution was trying to find false information on juror questionnaires in order to prosecute jurors for perjury if they did not find in the state’s favor; thus, such jurors would be influenced to convict the defendant. See “8 Ryan jurors ‘on trial now,’ ” Chicago Sun-Times, April 20, 2006. All of this suggests that digging into the backgrounds of seated jurors during a trial puts an inappropriate focus on the jury. Good lawyers persuade a jury to see the evidence as supporting their case. Trying to sway jurors by overtly playing to their prejudices and weaknesses subverts the adjudicative process. See, e.g., Irvan v. Frozen Food Express Inc., 780 F.2d 1228 (5th Cir. 1986) (ordering a new trial because the plaintiff’s argument was a conscious and deliberate appeal to the prejudice and passion of the jury); see also Model Rules of Prof’l Conduct R. 8.4 (“It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.”). Unfortunately, the increasingly easy and cheap access to information about jurors may mean that courts and trial attorneys need to be hypervigilant to safeguard against potential abuses. Post-verdict interviews After the jury has been released, it is a huge benefit to the trial attorney (both the winner and the loser) to be able to interview individual jurors to learn about their reactions to the proceedings and what worked � and did not work � about the case presented. Many courts require that attorneys get permission to have contact with jurors after a trial. See, e.g., Local Rule CV-47(b), U.S. District Court for the Eastern District of Texas (“After a verdict is rendered, an attorney must obtain leave of the judge before whom the action was tried to converse with members of the jury.”). Other courts, however, expressly forbid such contact for informational purposes, limiting contact to circumstances such as determining whether the verdict is subject to legal challenge. See, e.g., Local Rule 11.1.E, U.S. District Court for the Southern District of Florida (“[A]fter the jury has been discharged, upon application in writing and for good cause shown, the Court may allow counsel to interview jurors to determine whether their verdict is subject to legal challenge. In this event, the Court shall enter an order limiting the time, place and circumstances under which the interviews shall be conducted.”). Given the valuable information to be learned, it is unfortunate that some courts discourage or prohibit post-trial juror interviews, but it is perhaps understandable in light of situations, such as the Ryan trial, in which jurors feel abused by being the focus of too much attention. Some jurors may view any contact from attorneys as intimidating or even harassing. Courts are sensitive to this. See, e.g., Local Rule 11.1.E, U.S. District Court for the Southern District of Florida (Once permission is granted to interview jurors to determine whether the verdict is subject to legal challenge, “[t]he scope of the interviews should be restricted and caution should be used to avoid embarrassment to any juror and to avoid influencing the juror’s action in any subsequent jury services.”). With the enormous amounts and easy accessibility of electronic information and communication today, it is more difficult to preserve (and easier to undermine) jury objectivity. Individual lawyers must hold themselves and other members of the bar to the high standards of the profession, or risk losing the heart of our judicial system � an impartial jury. Abuses also may prompt more courts to become more restrictive of post-trial contacts with jurors, preventing trial attorneys from benefiting from valuable information that willing jurors can impart. Robert Abrams is co-chairman, and Terry Sullivan is a partner, in the global litigation practice at Howrey. They both work in the firm’s Washington office.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

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 © 2020 ALM Media Properties, LLC. All Rights Reserved.