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A possible million-dollar jury mistake must stand, the Colorado Supreme Court has held, because juror affidavits should not have been used to impeach the verdict. Although challenges to the verdict would have been appropriate if they did not involve juror testimony, the defense counsel “abused” the jurors into signing affidavits and the plaintiff’s lawyer had “responded in kind,” the court said. The decision was rendered in an action for injuries suffered in a car accident. The jury awarded $696,000 in noneconomic damages, $440,000 in economic damages and $1.136 million in physical impairment damages. Stewart v. Rice, No. 00SC970. The defense counsel theorized that the jury mistakenly added the first two amounts and entered a third sum, when they had not intended to award physical impairment damages. His private investigator persuaded five of the six jurors to sign affidavits to this effect. But then the plaintiff’s lawyer obtained affidavits from the same five jurors saying their verdict was accurate, and that they had only signed the first affidavit because the investigator made them feel like “idiots.” The state high court said the defense affidavits were inadmissible to impeach the verdict because they were not evidence of extraneous prejudicial information or improper outside influence. Moreover, the court said, correction of clerical errors did not include situations where the jury misapplied instructions. “What’s unusual is that the jurors told us the result was not what they intended,” said Franklin D. Patterson of Patterson, Nuss & Seymour of Englewood, Colo., who represented the defendant on appeal. “The verdict was unusually large for the type of damages claimed. The only persistent injury that the plaintiff complained about was periodic headaches, and he had been to the emergency room for headaches even before the accident.” But plaintiff’s lawyer Lloyd C. Kordick of Colorado Springs’ Lloyd C. Kordick & Associates, said his client, who was 9 years old at the time of the accident, had to miss school three days a week because of the headaches. Before the accident, he went to the emergency room only once. According to Professor Kevin M. Clermont of Cornell Law School, even courts sometimes find evidence rules “hard to swallow. So some courts have expanded exceptions, such as the clerical exception. The result is that in some states the law is left quite uncertain.” This uncertainty is undesirable, he asserted, because it undermines the reasons behind the evidence rules, such as the finality of judgments. “The better approach is not to apply the clerical exception to jurors’ mistakes,” he added. “And it works well in this particular case, where the juror affidavits are in conflict. Note that under its approach the court never has to face [the] question of whether the result is ‘fair.’ Instead, it follows an approach that, at least in the long run, is ‘just.’ “

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