I Thought That Juror Looked Familiar!

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Jury (pd)What happens if you are a party in a lawsuit and you recognize one of the jurors as someone who not only knows you, but probably does not like you and may be looking for revenge? According to the Appellate Division in Rumbas v. Sony Electronics, Inc., at the very least, you bring it up before the jury returns its verdict.

In Rumbas, plaintiff claimed that a television defendant manufactured was defective and caused a fire that damaged plaintiff’s condominium unit and three other units. At the start of jury selection, the judge explained the nature of the case to the potential jurors. He then sat the first eight jurors in the jury box and explained the jury selection process. Specifically, he explained that he would be asking a series of 28 questions, each of which was “designed to elicit a negative response.” As jurors in the box were excused, they would be replaced by jurors from the panel, but the judge would not repeat the 28 questions. Instead, he would simply ask the replacement juror if his or her answer to any of them would be anything other than “no.”  Therefore, the judge stressed that it was important for all jurors, not just those in the jury box at the time, to pay attention to the questions.

Early on in the selection process, while the original eight jurors were seated in the jury box, the judge asked the attorneys to introduce their clients. Plaintiff was not in the courtroom at the time. Apparently, he had to go to the pharmacy, but his attorney indicated that he would be returning soon. The judge then read a list of potential witnesses and asked if any of the jurors knew any of them. None did. During this questioning, plaintiff returned to court, at which time he was introduced to the jurors. The judge asked if any of them knew plaintiff, but none did.

The court eventually excused more than 25 jurors. The last juror seated, Juror No. 4, was asked if she had heard all of the judge’s questions and whether her response to any would be anything other than “no.” The juror responded, “No. I live in the municipality where the fire occurred. Surprisingly, for as small as the town is I really don’t know of this story.” The juror then provided some biographical, after which both sides informed the court that the seated jurors were an acceptable jury.

The trial lasted for about one week, after which the jury returned a unanimous no-cause verdict against plaintiff. During the trial, plaintiff had not raised any issues about any of the jurors.

Twenty-nine days after the jury rendered its verdict, however, plaintiff filed a motion for new trial, claiming that he not only knew Juror 4, but that Juror 4 did not like him. Plaintiff claimed that, approximately ten years earlier, he had evicted one of Juror 4’s friends from a property plaintiff owned. He further claimed that Juror No. 4 was “present when officers evicted the juror’s friend from the rental property,” and that Juror No. 4 had become “extremely agitated and actually confronted the officers.” Plaintiff concluded that “there was no way [Juror No. 4] would not know his name or remember who he was,” and that Juror No. 4 would “harbor bias against him which would affect [Juror No. 4’s] ability to be an impartial juror.”

During oral argument on the motion, plaintiff requested that the court summon Juror No. 4 for questioning. The court refused and then denied plaintiff’s motion. The court noted that plaintiff asked the court to assume that Juror No. 4 recognized plaintiff even though plaintiff did not recognize Juror No. 4 during trial. The court further reasoned that, to grant plaintiff’s motion, it would have to “conclude that Juror [No.] 4 recognized plaintiff, wanted to get back at him because he had evicted the juror’s friend from an apartment ten years earlier, and for that reason deliberately misrepresented her answer to a question posed by the court,” and further that Juror No. 4 then “influenced the six other jurors to decide the case in favor of defendant.” The court was not willing to make these assumptions.

Plaintiff appealed. The Appellate Division affirmed, noting that calling back jurors after they are discharged is an “extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct.” Absent such a high burden, “disappointed litigants would be encouraged to tamper with jurors, to harass them and to employ fraudulent practices in an effort to induce them to repudiate their decisions.”

To justify calling jurors back, there must be evidence that “information was communicated to jurors – by another juror or by an outsider – that [was] extraneous to the issues that the jury [was] deciding, and that would be sufficiently prejudicial to warrant a new trial if such information were considered by the jury.” Plaintiff’s speculation that “after ten years, a juror not only recognized him but maintained such a degree of animosity that the juror was motivated to both misrepresent answers to voir dire questions and attempt to influence other members of the jury” was not enough to satisfy this standard.

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