good-ol-boys gone wild but Judge Vance in no mood for a parte

When SLABBED reported Judge Vance’s well thought out Order on proof of loss and segregation of damages in Imperial Trading v Travels, it seemed as if the case would soon come to an uneventful end.

The trial ended on August 13th; but, the end was anything but uneventful.  At 10:00am the morning of the 14th, Judge Vance had counsel for both parties back in court – James Garner for plaintiff Imperial Trading and Ralph Hubbard for defendant Travelers.

THE DEPUTY CLERK: All rise, please. Court is in session. Please be seated.

THE COURT: Where’s Mr. Garner?

MR. FRANCIS: He is on his way, Your Honor.

THE COURT: He is late.

MR. FRANCIS: Do you want me to call him on his phone?

THE COURT: You better tell him to get over here right now.

MR. FRANCIS: He is in the courthouse coming up.

THE COURT: Okay. Good.

(WHEREUPON Mr. Garner entered the courtroom.)…

THE COURT: It saddens me to have to have this hearing this morning, but last night Mr. Garner called my husband to report on statements by jurors to his clients suggesting some impropriety in the verdict. This is an improper ex parte communication, and it shall never happen again.

Counsel is not to discuss with the judge or any other judge the merits of a pending proceeding outside the presence of opposing counsel. It’s also come to my attention that the parties have talked to these jurors: That Mr. Georges has talked to one of these jurors and asked her for an affidavit; that Mr. Corchiani spoke to another one of these jurors.

This is in clear violation of Local Rule 47.5E on interviewing jurors, which forbids any attorney or party to an action or anyone acting on their behalf to examine or interview any juror. No juror who may consent to be interviewed shall disclose any information with respect to the following: The specific vote of any juror other than the juror being interviewed, the deliberation of the jury, or for the purposes of obtaining evidence of improprieties in the jury’s deliberations. This rule has also been violated.

The third thing is that I have received phone calls from two jurors who have indicated some confusion in the amount of the verdict.

Needless to say,  Mr. Garner attempts to explain:

…First of all, I was sworn to bring it to Your Honor’s attention last night. It was not meant to be an ex parte conversation. I didn’t know what to do. In 20 years,  I have never had this happen to me. I was actually getting ready to call Ralph when I got a call from Kyle today…

Mr. Hubbard, understandably, wants to comment:

Your Honor, I guess I just want to say that to the best of my knowledge Travelers has had no contact  from anybody…and the first that I heard about this was when I walked in the courtroom, from Mr. Francis, at ten minutes to 10:00.

Naturally, he is also curious:

MR. HUBBARD: Can’t we get on the record exactly what happened from Mr. Garner’s perspective?

THE COURT: Yes.

MR. GARNER: My understanding — and this is from what was told to Gabe at Lucky Coin, or John. I tried to know as little as possible, Ralph — is that three or four of the jurors were looking for me after the trial. They were very upset. They couldn’t find us. So one of them I think her name was Saundra. I don’t know her last name. I didn’t memorize their names went to Lucky Coin, was in tears, was visibly upset, left her number — this is before they called me — and in the meantime talked to John and said, “I didn’t understand that was the number. I just wanted to tell your lawyers.

John called me, and I said, “Tell her I’m not talking to her. You don’t talk to her. Tell her to call the Judge.” Apparently sometime in the meantime he connected with Ms. Duet, too.

MR. HUBBARD: Did Mr. Corchiani talk to somebody?

THE COURT: Mr. Corchiani, I understood, talked to the first person.

MR. GARNER: He was at Lucky Coin.

THE COURT: Ms. Kimble is the one that talked to Mr. Corchiani. That’s what she told me.

MR. GARNER: I can tell you positions, not names: Upper left-hand lady went to Lucky Coin and talked to Gabe.

THE COURT: Then I understand that after she talked to Mr. Corchiani, she was called by Mr. Georges. She didn’t call him. He called her and asked her for an affidavit, which clearly I’m not entitled to do.

MR. GARNER: I instructed them not to do anything.

THE COURT: That’s what I know. Then I was called by Saundra Duet, who indicated to me that there was some confusion about the verdict. That is what she told me. I said, “Well, didn’t I ask you that when I polled you?” She said, “Well, we were scared, but we were surprised by the number because we thought that they were going to back something out,” they had already backed something out, and so when they read the number out loud she said she was surprised on what it was.

I clearly have to inquire into it because it’s the only thing under Rule 606 under these circumstances — I don’t think there’s any evidence of any kind of impropriety in the jury room or undue influence…The only thing I’m going to inquire about is
what they thought their verdict was and whether there was an agreement on the verdict.

I may not be able to finish this today, so I’m going to have to finish it on Monday. The two women I talked to on the phone I told that they are not to talk to anybody but me, and that if anybody tries to talk to them they are to tell them the Judge has ordered them not to speak to them.

Clearly, the parte is over and the court is in recess until – the afternoon, yes, the afternoon as in later the same day!

THE COURT: Good afternoon everyone. Since I spoke to you this morning, I have determined that grounds do not exist for me to sua sponte inquire into the jury verdict at this time. It is my intention to enter judgment on the jury verdict, and you can address whatever issues you need to address in post-trial motions.

You, your clients, and their agents are not to contact these jurors directly or indirectly without leave of court for cause shown. This means that should a juror initiate any contact with you, you are not to talk to them…

The jurors were asked to come and they were sent home. I determined that I don’t have authority to inquire into the verdict at this time, so I’m not doing it…I didn’t talk to all those jurors except to tell them to go home and not to talk to you. Thank you.

Judge Vance entered Judgment.  The following Monday, Mr. Garner filed a Motion for Leave to Interview Jurors. Judge Vance issued a text only order requiring both parties to brief the issue.  The Plaintiffs’ motion, memorandum, and exhibits are here Defendant Travelers’ response in opposition to the jury interviews is here and the Plaintiffs’ Reply is here:

At this point, no one, Travelers…[the Plaintiffs]…or this Court, knows exactly what Ms. Kimble and Ms. Duet, or any other juror, would say regarding the correctness of the damages on the verdict form.

Will they find out? Stay tuned.

3 thoughts on “good-ol-boys gone wild but Judge Vance in no mood for a parte”

  1. 1st off: Thanks youz for posting on Labor Day!
    But mainly we want to know… well, see, Editilla has all sorts of excuses, mostly illegal and all borderline psychiatric, for previously thinking the word erudite described a genetic trait like “termite” or “dolomite”… but…
    how do you come up with these Titles for your posts????
    We bow to da’Master.
    Editilla

  2. Wow, the Plaintiff’s Atty, called the Judge’s husband? That was not a BRILLANT thing to do. Unbelievable.

    Nowdy, I bow to you as well.

    On the subject of brillance though, I want to share a “comment” I “posted” on another Blog (but, unlike SLABBED, this particular Blog does not immediately “post” the comment – it goes through “channels” and may or may not show up as a “comment”)….Anyway, the Blog referred to clients who called alot and my comment was:

    You say:

    “It is human nature to push and push our staffs to take care of those we hear from more often.”

    Speaking from credible experience as a Legal Secretary/Paralegal longer than you’ve been an Attorney, I can say (w/authoritative experience) that it is USUALLY the clients that a law firm HEARS FROM THE MOST THAT ARE THE CLIENTS THAT ARE (USUALLY) IGNORED THE MOST. KEY WORD: USUALLY.

    Obviously, there are always the clients that are going to call FREQUENTLY even if an activity is performed on their file every day – that’s just the way it is. Further, “wisdom” would serve the Attorney(s) and their “support staff” (as we’re often called – the ones dealing w/these “frequent callers,” pacifying them, covering for the attorney, etc.,)…sorry, got off-track, WISDOM aids one well when dealing with said callers.

    However, as Barry Schwartz, so eloquently stated:

    “BRILLANCE ISN’T ENOUGH WITHOUT WISDOM.”

    Finally, to all the Legal Secretaries/Paralegals/Legal Asst. (or whatever title they printed on your card) out there: WE ALL KNOW WHAT WOULD HAPPEN WITHOUT US! I need not say another word because wisdom serves me well. Finally, I’ve dealt with enough qualified colleagues to know that it also serves them well. 🙂

    SHIRLEY HEFLIN

    P.S. Thank you SLABBED for instantly posting my comment and allowing me to share my thoughts – nothing like honest to goodness FREEDOM OF THE PRESS!

    P.S.S. Nowdy, great article, as usual and I look forward to your next “up-date” on this.

  3. The attorney who called Judge Vance’s husband would probably be the first to admit it was not a “brilliant” idea – in fact, he said as much himself as everyone can see in the linked documents.

    In that context, it would be wonderful if there was a way to “moderate” the things we say under pressure – to save us from ourselves.

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