On March 5, 2014, Justice Karalunas of the Onondaga County Commercial Division issued a decision in Varano v. FORBA Holdings, LLC, 2014 NY Slip Op. 50312(U), addressing inappropriate counsel contact with jurors.
We have excerpted Justice Karalunas’s opinion below. We think the practice tips are plain:
In a decision dated November 18, 2013 and order dated December 2, 2013, this court exercised its discretion to grant a new trial. The decision was not made lightly. In fact, it disturbed a unanimous jury verdict for the defense after a 15-day trial and the use of tremendous judicial resources. The decision was required because the conduct of a third party, an attorney named Scott Greenspan, violated the sanctity of the jury, imperiled the administration of justice, and was prejudicial and likely influenced the jury’s verdict.
Greenspan was observing the trial on behalf of a company that insured some of the trial defendants. The court found that he also observed the jurors outside the courtroom at every opportunity — by following them to lunch, following them outside during smoking breaks, riding with them in the courthouse elevators, and lingering near them during other breaks. There is no dispute that Greenspan had one conversation with several jurors in a courthouse elevator during the trial. One of the jurors asked him if he was a reporter, and he responded that he could not talk to the jurors. The impetus of this conversation was central to the court’s finding of misconduct. As the court stated in its prior decision:
What defendants ignore, however, is what prompted the juror to finally ask Mr. Greenspan who he was. In the juror’s own words: “I was very curious because I was sick and tired of him following us. And I said I”m going to ask him, if he’s got the nerve to follow us around, I”m going to have the nerve to ask him why. . . . I just did not like it. He was everywhere we went. You know, to me that’s stalking. You don’t do that.” . . . The court finds that Mr. Greenspan’s conduct went well beyond the conversation in the elevator. Over the course of a 15-day trial, Mr. Greenspan continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks, and when they rode the elevator. The court discredits Mr. Greenspan’s attempts to minimize his contacts with the jurors. Even without characterizing the behavior as stalking, Mr. Greenspan’s contact with the jurors constituted improper misconduct.
By notice of motion dated January 30, 2014, the “New FORBA” defendants (i.e., FORBA Holdings, LLC n/k/a Church Street Health Management, LLC, FORBA NY, LLC and Small Smiles Dentistry of Syracuse, LLC) moved to renew the prior mistrial motion, and upon renewal, reverse the prior decision and order and reinstate the jury’s verdict.
. . .
Defendants offer new facts in the form of six affidavits from jurors in the Bohn trial. The evidence was not previously available because this court instructed counsel to have no direct or indirect contact with the jurors. The court issued this instruction on October 10, 2013, shortly after Greenspan testified and the issue of potential misconduct came to light.
. . .
In an abundance of deference to the defendants, the court grants the motion to renew to allow consideration of the new affidavits. . . .
As this court noted in its prior decision, jurors’ own statements are incompetent to impeach their verdict. The implicit corollary of this rule is that jurors’ own statements are incompetent to justify or otherwise bolster their verdict.
. . .
The juror affidavits submitted on this motion improperly invade the deliberative process. Each affidavit of a juror who deliberated states that they never discussed Greenspan during deliberations. Affidavits from the two alternate jurors speculate that Greenspan did not influence the verdict. However, this court noted previously that it is the most natural thing for a juror to disclaim that misconduct had any influence on the verdict. The disclaimers in the affidavits carry no weight.
. . .
The attorney-drafted affidavits are remarkably uniform. Indeed, they are virtually identical. The affidavits are consistent in stating that Greenspan’s only verbal contact with any juror involved the conversation in the elevator. That fact was never disputed. The affidavits do not contradict the juror’s testimony before this court that he/she and the other jurors discussed Greenspan’s conduct during the course of the trial. The affidavits do not contradict the juror’s testimony that he/she told the other jurors he/she believed Greenspan worked for the defendants. The affidavits are completely silent on the issue of Greenspan’s conduct in following the jurors to lunch, on smoking breaks, in the elevators, and in other areas. The affidavit of the juror who testified before the court in no way conflicts with his/her prior testimony that Greenspan’s conduct bothered him/her, was creepy, was stalking, and made him/her feel scared.
Most importantly, defendants submit the juror affidavits in support of a subjective standard as to whether Greenspan’s misconduct influenced the verdict. As this court held previously . . . that is not the correct legal standard.
. . .
Defendants repeatedly state that the dispositive issue here is whether Greenspan’s misconduct actually influenced the jurors. However, case law states that the dispositive issue is whether the misconduct or improper outside influence was likely to influence the verdict. The Fourth Department has held:
It was not necessary for the plaintiff to show that the acts complained of influenced the verdict in favor of the defendants; it is sufficient to warrant relief, if they were likely so to do. It is important that the conduct of those to whom the administration of the law is intrusted should be such as to furnish no just ground for suspicion that the decision was founded on anything other than the evidence.
(Internal quotations and citations omitted) (emphasis added).