Friday, July 24, 2015

Dietz v. Bouldin (9th Cir. - July 24, 2015)

When we discuss inconsistent (or incoherent) jury verdicts in Civil Procedure, I often tell my students that a court is not permitted to reassemble the jury and order them to deliberate further once the jurors have been dismissed.  That's a reasonably accurate statement of the law.

As today's Ninth Circuit opinion notes, while some circuits (e.g., the Eighth) hold that this is a nice, bright-line rule, other courts -- including today's opinion from the Ninth -- hold that the magic words "Jury dismissed" aren't actually magic.  You can still pull the jurors back in for redeliberations.  At least if, as here, the jurors haven't actually left the building -- or, perhaps even if they have -- so long as you make sure they haven't received any outside prejudicial communications in the meantime.

The opinion leaves open the question of how long is too long.  And that's a darn tough question.  One that's a decent argument for the Eighth Circuit's contrary rule.  I see the Ninth Circuit's point that it's a bit silly to not let the jury engage in further deliberations if, say, they're still in the jury box.  And that same principle would arguably apply if they've all just left and are now in the hallway outside the courtroom.

But what's the principled stopping point?  What's too late?  Outside the courtroom doors?  On the bus back to home?  The next day?  The next week?  The next year?

The Ninth Circuit puts a lot of stock in the fact that the jurors said they hadn't yet discussed the case with anyone else.  But if that's the dispositive fact, then presumably you can recall the jurors years (or decades) later so long as they similarly testify, no?  Surely that can't be right.

Judge Fisher's opinion says that in this era of smartphones and Twitter, it's just as likely that the jurors would have improper post-deliberative contacts inside the courtroom as outside of it.  That's true.  But I think that argument cuts both ways.  It's true that it can be used to show that so long as you're allowing jurors to be reassembled from the hallways (as some prior courts have done), you can perhaps equally reassemble them from the first floor or right outside the building, since they might have fired off a blog post in any of these places.

But it's also a good argument for the Eighth Circuit's contrary bright-line rule.