Monday, September 26, 2016

Are you sure you want to take that case to trial?

Consider Locigno v. 425 West Bagley, Inc. [pdf], decided last week by an Ohio appellate court.

This case is remarkable. Because of some odd communications between a juror and the court, the concurring opinion gives a unique look behind the curtain of jury deliberations. And it isn’t pretty.

The jury foreperson passed the following letter to the judge’s bailiff:
As the jury foreperson in this trial, I feel compelled to share the following with you. It has come to a point in the trial where the jury agrees that there was some degree of wrong doing by the Defendant and some agree that also on the Plaintiff’s part. At this juncture, jurors have started to make personal attacks on others and brought others’ children and even God and Religion into their decision making process. Much to my dismay, one juror has referred to two other jurors as pigs because they are business owners and the Defendant is a business owner. One has taken a personal stance and said I will never understand until this happens to my two daughters. I have tried with little or no success to mediate these events and have repeatedly read the jury charges to them. Many, mainly the women, are too passionate and can not set their passions aside to consider the testimony put before them as their basis for the decision making process. We have one juror with a sprained or strained back from a car accident that is very rational and a good juror, but, in light of his discomfort some of the other jurors are starting to leverage him because they know he is in pain and wants to just go home. I am very disturbed by the fact that some jurors are merely just wanting to send a message without making decisions based on the evidence presented and testimony that has taken place over the last 7 days. 
Ultimately, the jury reached a verdict for the plaintiff.

Yet, what does this letter illustrate?
  • Jurors were making ad hominem attacks on each other, some of which focused on jurors’ children and religion.
  • Jurors disparaged the parties.
  • Jurors leveraged another’s medical condition to pressure him into a decision.
  • Jurors let their personal experiences override the facts as presented in the case.
What does this one glimpse into the jury process show? That this jury tried to rely on everything but the facts to reach a decision. We hope that jurors leave their prejudices outside the deliberation room and focus on the testimony and evidence presented during the trial. This one example shows that this hope is not always satisfied.

There are lots of disputes that must be litigated to be resolved. A (small) percentage of them will even need a jury of our peers to conclude. When a plaintiff makes a settlement demand many times in excess of what it will cost you defend the case, litigation makes sense. When the future of your business hinges on an outcome (such as a key employee’s theft of trade secrets), litigation makes sense. When an employee did something horrifically wrong causing the termination, and you cannot in good judgment pay that employee any amount of money, litigation makes sense.

However, when deciding whether to take your case all the way, remember Locigno v. 425 West Bagley.