The Background
Rumor has it that the Texas Supreme Court is about to issue an opinion in an interesting case. Normally I don’t follow civil appellate decisions as closley as I do criminal ones, but for this I’m making an exception. It’s because 1) this is a really interesting situation and 2) the Texas Supreme Court’s decision could have far reaching implications into criminal law.
The case is Ford v. Castillo, and it started as your basic products liability lawsuit. The plaintiff was injured in a rollover accident involving a Ford SUV (I know, shocking). She alleged that the car was defectively designed: prone to roll over and with a ceiling that wasn’t strong enough to protect the passengers. The case went to trial (shocking, because almost all cases settle) and got all the way to jury deliberations. This is where it got interesting. Juries can send notes to the judge asking questions. Usually they get back answers like “Read the jury charge and figure it out yourselves” or something to that effect. Lawyers (and paid jury experts) pore over these notes looking for a hint about what the jury is thinking. Usually you can’t glean a whole lot, but sometimes it’s rather obvious.
In this case, the note asked what the highest possible damage award was. I imagine that the collective Ford team (which probably involved LOTS of lawyers and paid experts) uttered a collective *insert worst curse word you can think of here*. They promptly ran off to try and settle with the plaintiff, which is exactly what they did. Before the jury could come back with a verdict, Ford had settled for far more than they had ever wanted to.
This, in itself, is not that weird. Ford took a completely logical path here. The lawyers and company executives looked at the available information and decided that they would rather take the devil they knew, as opposed to the devil they didn’t. If people didn’t act like this, there would never be settlements. If that were the end of the story, everyone would probably be happy today. But it’s not, and they’re not, none of them (except for the lawyers – if Ford is able to pay their bill anyway).
The lawyers discovered that the jury had been leaning towards showing the plaintiff the door, and the foreperson sent the note to the judge over the objection of some other jurors. This seemed very unfair to the lawyers (and Ford) so they asked the judge to question the jurors under oath and to have the settlement agreement set aside as being a contract made under fraud. The idea is that this juror was deliberately trying to get Ford to settle, so the contract (the settlement) isn’t fair and should be set aside. The trial judge refused to let the lawyers question the jurors about deliberations, and now the Supreme Court has the case.
The Case
The issue here is whether Ford lawyers should be able to question jurors about what happened in the jury room. One side says that this could open up ways for jurors to deliberately screw with the process, the other side says that jurors need anonymity or verdicts won’t be trustworthy. I think it goes beyond both of those things. This is about the jury system itself.
Trial By Jury – An American Quirk
The United States has always had a special love affair with trial by jury. Ask most Europeans if they want trials to always be judged by ordinary people and they would probably look at you like you’re insane. But we’re different; we think that the best way to ensure freedom and fairness is to diffuse the power to judge. The truth is, the jury system works pretty well. There are always sensational cases when it doesn’t, but, by and large, ordinary people are good at seeing through lawyers and witnesses and picking out the truth, or at least what’s fair. Anonymity is vital to the jury process. If jurors were worried about people asking them what happened inside the room, then they would feel far less free to get to the bottom of things, and far more concerned about how it would look to outsiders.
Effect on Criminal Trials
I am especially concerned with this case because of what it could do to criminal jury trials. It’s one thing to say that Ford should be able to ask people why they sent a note that made Ford fork over some money, but it takes a different tone when it’s a defendant asking why a jury a sent a note that made him plead guilty, or a prosecutor questioning jurors about why they voted not guilty.
My Take
We will never know (unless we are allowed to ask) why that juror wrote that note. Maybe she really did want to stick it to Ford. Maybe she was just trying to be a pain to the other jurors. More importantly, does it really matter? Let’s say that she was trying to get Ford to settle (I think it’s unlikely, because most jurors aren’t thinking about the settlement potential of their notes, but who knows). Ford knew what it was doing. They got the short end of the stick this time, but the rest of the time it probably would have worked out. It was a gamble, and one they didn’t have to take.
If we’re going to continue to embrace the jury system (and I’m not saying we should or shouldn’t) then we need to accept that jurors are not always rational (at least to outsiders) and that juror deliberations are secret. Ford’s actions remind me of the banks who are asking for bailouts right now. For years they gambled and won, but now that they’ve lost they complain that the game isn’t fair. Gambling is an inherently risky business, and you have to take the good with the bad.
In the end, it comes down to a saying they have in boxing (and ultimate fighting): never let it get to the judges. Since you can always lose a decision that has to get to the judges, you need to always knock the other guy out. It’s not much different in litigation; the only safe course is to not let it get to the jury. Settle early or get it taken out by the judge on summary judgment. And if you can’t do that, then don’t complain when the split decision comes out against you.
At least, that’s my take.
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