- Don’t communicate with the jury panel before trial. Before trial, attorneys can’t communicate directly or indirectly with anyone known to be a member of the panel from which the jury will be selected. Cal Rules of Prof Cond 5-320(A). And this includes communication through social media, which may include searching a juror on LinkedIn.
- Don’t do pretrial investigations of the jury panel. Although the California Rules of Professional Conduct don’t expressly prohibit out-of-court background investigations of the prospective panel, they do say that an attorney may not investigate a juror or a prospective juror in a way that’s likely to influence that person in present or future jury service. Cal Rules of Prof Cond 5-320(E). Investigation includes searching through social media, such as LinkedIn. And this rules applies to investigations of a juror’s or prospective juror’s family members. Cal Rules of Prof Cond 5-320(B).
- Don’t be overly solicitous to jurors during trial. It’s improper for a trial attorney to curry favor with jurors by undue solicitude for their comfort. For example, during trial it can be improper to discuss in the jury’s presence the length of each trial session or the time or place of the jury’s retiring. An attorney who has questions about the length of a trial session or the jury’s comfort should discuss the matter out of the jurors’ presence, e.g., in the judge’s chambers.
- Don’t get too familiar with the jurors. Courts have held that giving the jurors candy and cigars when the attorney’s wife gave birth and addressing individual jurors by name during argument crossed the line.
- Do communicate with jurors after trial. After the trial is over, you may (and often should) communicate with members of the jury. These post-verdict chats are very useful and may even be crucial. But there are some caveats here:
- Keep these discussions professional; don’t ask questions or make comments intended to harass or embarrass jurors or to influence their actions in future jury service. Cal Rules of Prof Cond 5-320(D).
- Avoid any adverse comments on the jury’s reasoning or results.
- Don’t give the jurors information that they were prevented from knowing during the trial.
If you know of improper conduct by another person toward a prospective juror, a juror, or a member of the juror’s family, promptly bring it to the trial judge’s attention, with a court reporter present to make a record. See Cal Rules of Prof Cond 5-320(G). Not doing so may constitute a waiver of any claimed error on appeal.
Learn what constitutes misconduct when it comes to jurors and how to steer clear of it by reviewing CEB’s California Trial Practice: Civil Procedure During Trial, chapter 16. Also check out information on jury management and misconduct in §§25.22-25.71 of that book. On post-verdict juror interviewing, check out CEB’s California Criminal Law Procedure and Practice §29.59.
Related CEB blog posts:
- Navigating a Potentially Polluted Jury Pool
- Do You Know When to Use Jury Questionnaires?
- Charting the Jury
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