When it Comes to Trials, it’s Like a Box of Chocolates. Sometimes You Get the Icky Cream Fille

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According to the California Judicial Council you have about a one in three chance your case will go to trial.  In 2018, of the 210,028 unlimited civil cases that were filed (i.e., cases with an amount at issue of more than $25,000) only 33 percent made it all the way to trial.  The odds are even less if you’re involved in a limited civil case (i.e., cases with an amount at issue of less than $25,000) where only 15 percent make it all the way to trial.

The reason: Lawyers are expensive.  The other reason: Trials are risky. As well prepared as your counsel may be for trial, when it comes to trials, like boxes of chocolates, “Ya never know what you’re gonna get.” And sometimes you really, really don’t know what you’re going to get.

I had a client involved in a trial once. The defendant’s representative at trial was a well-to-do young man and heir to a hotel fortune. He was young, athletic and had a confident, carefree way about himself that reminded me of “Dickie” Greenleaf from the Talented Mr. Ripley. And I wasn’t the only one who noticed.

One of the jurors, a young lady, noticed as well. Her gaze would stop just a moment too long on him as she looked around the courtroom, and when she did, a slight smile would appear at the corners of her mouth. It was one of those things you notice, let roll around your mind a bit, and then float away. It wasn’t until toward the end of what turned out to be a six-week trial, when things weren’t looking so good for the defendant, that those fleeting thoughts came racing back.

The juror, “Juror No. 12,” complained counsel for the defense, had tried to Facebook “friend” the dashing young hotel heir. And, thus, argued the defense counsel, a mistrial was appropriate. The judge did not call a mistrial, basically concluding that a juror trying to Facebook befriend your client doesn’t prejudice, but if anything, helps your case. Juror No. 12, however, never made it back the next day. I don’t think it boded well for the friendship either.

The point is. These things happen. Not often, but they happen, as the case Nodal v. Cal-West Rain, Inc., 2nd District Court of Appeals, Case No. B285482 (July 17, 2019),  a quirky little construction case that has very little to do with construction but a lot to do with juror misconduct, illustrates.

Nodal v. Cal-West Rain, Inc.

Ruben Nodal was a vineyard foreman. He worked for Vineyard Consulting Services, which had been hired by Lunacy Vineyard to plant and cultivate its vineyard. The irrigation system for the vineyard was designed and installed by Cal-West Rain, Inc. The irrigation system pumped water from a reservoir to a pump station and from the pump station to irrigation blocks around the vineyard.

In August 2010, Nodal pulled the power lever on the pump station from “off” to “on,” opened a gray box on the control panel, and pressed a green “manual” button and a blue “auto” button. When he did, the pump station powered up, but as it did, the pressure in the pipe caused a 20-pound valve assembly to blow off the pipe and strike Nodal in the noggin.

Nodal sued. At the conclusion of trial, the jury returned a 9-3 verdict for CalWest finding that CalWest was not negligent in its design or construction of the irrigation system. However, the interesting part, was that Nodal moved for a new trial on the basis of juror misconduct.

According to Nodal, one of the jurors, referred to as Juror “Reed,” a pipe fitter for 35 years who farmed in the Central Valley and who had designed and built an irrigation system for his almond ranch, told fellow jurors during their deliberations that he had “been doing this for years,” that “[a]nybody would have put [the system] together the exact same way,” and that “[CalWest] installed the system like everybody in the industry does.”  According to declarations from four jurors, Reed stated:

  1. “[T]hey installed the system the way the AG industry does it, that’s just how it’s done.”

  2. “Everybody does it this way and this is industry standard.”

  3. “[O]nce the system was put together, and CalWest had done their testing, the ownership of the system transferred to the owner of the vineyard, and then anything that happened was the vineyard’s responsibility.”

However, the trial court was not convinced and found that, while juror misconduct had occurred, it did not prejudice Nodal because the other jurors were free to draw different inferences from the remarks. Nodal appealed.

The Court of Appeal Decision

On appeal, the Second District Court of Appeals explained that “[j]uror affidavits may be used to impeach a verdict if they refer to objectively ascertainable statements, conduct, conditions or events, but not subjective reasoning processes of the jurors, which are likely to have influenced the verdict improperly.”

The California Supreme Court, explained the Court of Appeals, has held that “[a] fine line exists between using one’s background in analyzing the evidence, which is appropriate, even inevitable, and injecting ‘an opinion explicitly based on specialized information obtained from outside sources,’ which we have described as [juror] misconduct.” Further, explained the Court, a juror’s “injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.”

Here, held the Court of Appeals, by stating that CalWest’s design and construction met the “industry standard,” Juror Reed had introduced information from outside sources thta was not presented at trial.  And, by stating that “[a]nybody would have put [the system] together the exact same way” when combined with Juror Reed’s assertion that he had “been doing this for years,” Juror Reed had improperly introduced new evidence in the nature of expert opinion.

“When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the [plaintiff’s] detriment,” explained the Court of Appeal, “we are compelled to conclude that the integrity of the trial was undermined.”


While Nodal didn’t involve quite the excitement of a Facebook “friend” request, it also reflects what might be a more typical scenario one might encounter at trial, of a juror, with specialized knowledge, using that knowledge to influence the decision of other jurors and what this means for the parties.

#Juror #Jury #Misconduct #Nodal

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