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You might think that a trial would run more smoothly with a lawyer on the jury. But not in Margaret MacDougall’s suit over an allegedly botched eye surgery. Last year, a San Francisco Superior Court judge concluded that a local lawyer who cast the crucial last vote for the defense had committed juror misconduct by voting to end a deadlock so he could return to work. On Thursday, the 1st District Court of Appeal agreed MacDougall should get a new trial. The juror, San Francisco personal injury lawyer Francis Fahy, apparently signed a statement, drafted and submitted by the plaintiffs attorney, admitting he’d switched for the sake of expediency. Soon after, he said the statement was wrong because it wasn’t his workload that changed his vote. He says he reversed himself after taking a weekend to reconsider the case. “After having an opportunity of two days to examine the evidence and weigh it fully, that’s how I came to my conclusion,” Fahy said Thursday when asked about the 1st District’s unpublished opinion. “I frankly don’t recall signing a paper that says that I changed my vote just to get back to work.” On the Monday morning in 2004 when the jury passed on the message to Judge David Ballati they had reached a verdict, the forewoman sent another message with it: Based on verbal statements during deliberations, she told him, she was concerned that “some jurors have changed their vote only to end deliberations — not based on testimony or evidence.” But after questioning each of the jurors individually, Ballati didn’t find any misconduct. MacDougall’s lawyer, San Mateo solo Dan Himmelheber, didn’t let it go, though. After the trial, he says, he asked the forewoman what was behind her note. Then he asked for a new trial, arguing juror misconduct, among other things. He included a declaration from the forewoman, as well as Fahy. According to the 1st District’s opinion, the forewoman claimed that during the deadlock, Fahy made two troubling statements, once saying he’d change his vote “just to get out of further deliberations” if the judge didn’t declare a mistrial. The Fahy statement submitted by the plaintiffs lawyer said that going into the fourth week of trial, problems were mounting at work. “[I] advised my fellow jurors that I would change my vote if Judge Ballati failed to declare a mistrial � because there was no way I could afford to spend another week away from the office,” the declaration stated, according to the 1st District opinion written by Justice Sandra Margulies and joined by Justices William Stein and Douglas Swager. But Fahy backed away from those statements in another declaration submitted by the defense, saying he had asked plaintiffs counsel to change the language to say that his motivation was the evidence. Ballati didn’t believe him, though. After listening to Fahy at a hearing, he called much of his testimony “obfuscating and not credible.” In his court order he said he thought Fahy’s initial statement had been “completely truthful.” On Thursday, Fahy still insisted that “going over the evidence in my mind” led to his final vote. He added that the trial had actually been a great learning experience, because he got to see a jury from the inside. “I was in no rush to have it end.” Defense lawyer B. Thomas French, a partner at Hassard Bonnington in San Francisco, said Thursday that he was not sure if his client would appeal. The case is MacDougall v. Buckley, A108008.

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