My pal, Mark Bennett, the superlative federal trial judge from Iowa, sent me a note about the Supreme Court of New Jersey categorically barring judges from speaking with jurors off the record following a jury verdict. Both Mark and I regularly speak with jurors after each verdict.
We do so for a variety of reasons, but I think these two are the most basic reasons: (1) jury service is an acutely distressing task to lay people and the simple act of saying “thank you” and showing human kindness from the judge after the verdict, in an intimate and private setting, is the humane thing to do; and (2) we trial judges learn a lot about how to do our jobs better.
Now, sure there can be problems.*But over the 25 years I have been doing this, I have never had one problem, and I have spoken with each and every jury after each and every case. Let me repeat that: After 25 years not one problem has arisen. If you are an appellate judge, or an academic, you can dream up all sorts of problems. In the real world, when you are dealing with real people who have taken their time, and invested their souls, in fulfilling the great promise of the Sixth and Seventh Amendments, the good common sense of experienced trial judges counsels against inflexible rules that interfere with judicial discretion.
Let me be clear: I never conduct such interviews until after I have excused the jury. As such, there can be no ex parte contact with jurors. (By the way, when I served on the Codes of Conduct Committee, I once spent a lot of time trying to define for myself the phrase “ex parte contact.” Ethics professors, judges and lawyers use the phrase a lot, but if one looks seriously you will find the phrase very hard to define with any precision.) Thus, I feel perfectly free to speak with the jurors without inviting the lawyers to accompany me. These citizens are no longer jurors. No former juror is required to participate, and each former juror has a First Amendment right to speak with whomever they choose.
The first thing I do in the jury room is shake hands with each juror individually and thank each one for their jury service. The act of gently grasping the hand of a juror has great symbolic power. I tell them that I am happy to discuss any questions they may have except as to the particulars of their decision. I never inquire into the particulars for ruling one way or the other. I don’t make comments about the substance of their verdict, mostly I just answer questions about the trial process plus incidental things like whether the parking garage is still open, when they will get paid or how they get attendance certificates for their employers.
If a sensitive question arises, I easily duck the question–experienced trial judges are very good at that and the previously excused jurors instinctively understand. I explain to the former jurors that they may speak with the lawyers if they wish, but that they have no obligation to do so. If they speak to the lawyers, I encourage them not to discuss the substance of their decision while feeling free to provide a critique of the lawyers’ performance so the lawyers can improve. Virtually, all of the former jurors express relief after my post-verdict discussions with them.
By the way, this post-verdict discussion is a bookend to the “walk around” jury orientation practice that I follow immediately before selecting a jury. See here. See also the fascinating “guest post” from a really good trial lawyer about his experience with an interview of former jurors when he served as a law clerk to a very experienced federal trial judge. Kyle McNew, One trial lawyer’s view about speaking with the jury after the verdict, Hercules and the umpire (September 24, 2014).
And this brings me back to New Jersey decision. Here is a squib about it:
On December 23, 2014, the Supreme Court of New Jersey entered an opinion in Davis v. Husain. The underlying case was a sexual harassment allegation and the plaintiff was awarded $12,500 by a jury. Following the verdict, the trial judge communicated directly with the juror’s outside the presence of the attorneys or the parties, and no record was made of that exchange. During that communication, a juror expressed surprise that the defendant did not place his hand on the Bible while taking the oath. That comment was reported to counsel for both sides and resulted in post-trial motions as well as the issue on appeal. The Supreme Court of New Jersey stated, “we hold that under no circumstances may post-verdict discussions occur between the court and discharged jurors, unless those discussions are part of a hearing ordered on good cause shown pursuant to Rule 1:16-1.” The Court went on to state that if a trial judge wishes to thank the jury for their service, they may do so but that must be done in open court. The Court further noted that it may be a violation of the Code of Judicial Conduct in New Jersey for a trial judge to engage in ex parte communications with a jury.
NCSC, Jur-E Bulletin (January 2, 2015).
With due respect to the New Jersey Supreme Court, I’m not going to change my practice because of a “one-off” problem. What are your thoughts about the New Jersey Supreme Court’s decision and the prohibited practice more generally?
*I do not intend this blog post as a survey of the federal sources on ethics or law on this subject. Suffice it to state that I could credibly defend my federal practice from both a legal and ethical point of view.