Inadvertent Client Contact with Prospective Jurors: A Plan for Prevention and Cure
When we prepare a client for trial, we go beyond a discussion of the substance of the proposed testimony. We cover appropriate courtroom attire and specifically tell the client to maintain a respectful, courteous, and responsive demeanor on the stand. We may also stress that even when seated at the counsel table the client must not act in a way that would be viewed poorly by the jury, such as by exhibiting boredom or anger.
However, counsel’s instructions on client behavior should go further. This is because the client may have unintentional but consequential interaction with prospective jurors before the trial ever begins. If these interactions are not prevented right at the outset, or, if they do occur, not discovered until the trial is well underway, they can result in significant waste of time and expense for all of the parties involved, particularly if a mistrial results. Even worse, if an interaction results in juror prejudice against a client and the interaction is not discovered until the trial is well underway or even over, it may negatively impact the final result, with few prospects for relief to the losing party. This Article discusses how these interactions can happen despite our efforts to prevent them, and what we can do about it before and during trial.
II. How the Problem Arises
There are a number of ways in which a client can have unexpected interaction with a juror before trial, whether for good or ill. On the first day of trial, the client must travel to the courthouse and either park a car or be dropped off by public or private transportation. Potential jurors and their family members may be doing the same thing, at the same time, at the same location. Some of these people with whom the client must interact on public approaches to the courthouse or in courthouse elevators or hallways may therefore turn out to be prospective jurors in the client’s case.
Experience teaches that in some instances even momentary interactions with strangers at the courthouse may have unfortunate consequences. For example, a client’s perceived rudeness to another driver in the vicinity of the courthouse or to a fellow passenger on a courthouse elevator may cause a problem if that person turns out to be a juror on the client’s case. Likewise, seemingly innocuous statements by the client overheard in the courthouse cafeteria may have similarly unfortunate consequences. Some such statements born of nervousness, such as “Oh goodness, I hate coming to court” or “Wish me luck, I’ll need it” or “I hope my case will settle” may be overheard and perceived by nearby listeners in a manner not favorable to the client. Other statements directed to family or friends accompanying the client may by their nature engender hostility in certain nearby listeners. Statements like “My lawyer says we don’t want older folks on the jury” or “I saw (a politician) on TV, and I don’t really care for him” fall into this category.
Once jurors are selected and are possibly even wearing juror badges, such inadvertent communication with jurors is less likely. Indeed, jurors will be instructed that once selected as jurors they are to avoid such contact.1 Some judges go further and explain to the jurors that once the trial begins the parties and the lawyers are obligated to avoid any contact at all with jurors, even the exchange of pleasantries, and that such behavior by parties or counsel is not to be taken by jurors as evidence of aloofness or discourtesy. However, if a juror has already gained an unfavorable impression of the client prior to the trial even beginning— which impression the juror may not fully appreciate until well into the trial, and the origins of which impression may never be disclosed to other jurors— harm may be done to the client’s case.
What can counsel do to avoid or undo such harm? The answer lies partly in the prevention and partly in the cure.
III. Preventing the Interaction in the First Place
Counsel’s pre-trial instructions to the client should include a general discussion of the risk such inadvertent interaction with a perspective juror poses for the client’s case. Then, the preparation of the client for trial should include a specific and unambiguous instruction like this to the client:
The trial doesn’t just start when the judge walks into the courtroom. For you, the trial starts from the moment you leave your home on the first day of trial. Be on your best behavior in dealing with everyone on the way to and in the courthouse, and don’t say anything about the case or say anything else which you or I wouldn’t want jurors to overhear, because they just might be listening.
IV. Curing the Effects of Inadvertent Client- to-Juror Interaction—An Extra Voir Dire Question
Most lawyers carefully craft and limit the length of their voir direto avoid being tedious and repetitive. However, given the need to uncover and undo the effect of a client’s inadvertent pre-trial contact with prospective jurors, and given the reality that the client may not be aware such unfortunate contact has occurred, incorporating an additional question into counsel’s standard voir dire may be a good idea. Here’s why.
The trial judge is required to ask prospective jurors if they are related to the parties.2 The lawyers will almost invariably ask if the jurors are even acquainted with the parties or their family members. However, jurors to whom such specific inquiries are posed by court and counsel may not think to reveal what was only a momentary interaction that occurred before they ever reached the courtroom. Indeed, unless specifically asked about such a possible interaction, they may not even remember the interaction until jury selection is long over and the trial is well underway.
Therefore, in a case where the physical layout of the courthouse or any other factors lead to a reasonable concern on the part of counsel that such inadvertent interaction could have occurred, counsel can brieflyaddress the subject in voir dire in this way:
You have been asked whether you are acquainted with or related to the parties. Let me go beyond that and ask you this. Is there anyone here who, when you were coming to the courthouse or were in the hall or the coffee shop or on the elevator before you got to the courtroom today, had any interaction with [the client]? I’m including when you’re looking for a parking spot, on your way to the jury assembly room, or anywhere. Did anyone have any occasion to see or speak to or overhear or have any interaction at all with [the client] before you were introduced to [him/ her] in the courtroom here today?
If it turns out that such contact has occurred, the matter can be appropriately explored with the prospective juror, either in open court or on an in camera basis. In appropriate cases, either a request to excuse a prospective juror for cause3 or the use of a peremptory strike4 can be considered.
The key is to either confirm such contact has not occurred or make sure any contact has no impact on the client’s case. A losing party seeking relief from a verdict may have difficulty establishing that a momentary pre-trial interaction uncovered only after trial constitutes “extraneous prejudicial information” under the requirements of Wis. Stat. § 906.06.
In most cases, pre-trial interaction between the client and prospective juror can be avoided if the client is cautioned about the danger of such interaction. If such contact has occurred, however, it may take a specific voir dire question to find out. In the end, no one wants to run the risk of a mistrial or, even worse, losing a trial before the trial begins.
Russ Ware is a past President of the Wisconsin Defense Counsel. He currently practices as a mediator in the Milwaukee area. He can be reached at firstname.lastname@example.org.
2 See Wis. Stat. § 805.08(1).
4 Wis. Stat. § 805.08(3).