A favorable defense verdict is a precious item. It is secured by thorough preparation, a persuasive presentation, favorable facts, and a little luck. The last thing a party wants to see is the verdict overturned because of some unauthorized contact with the jury.

Bohn v. Forba took fifteen days to try. The jury returned a unanimous defense verdict and the trial judge, as was her custom, privately thanked them for their service. When she asked if they had any questions, the jurors inquired about the person “stalking” them throughout the trial. The jurors further described him as “creepy” and “seedy” and related that he seemed to follow them in the courthouse elevators, lobby and local restaurants. Some expressed concern that the “stalker” was videotaping them. After one juror observed this person talking to defense counsel and his two clients, the juror concluded that he must be associated with the defense team.

The mystery man was, in fact, a partner “in a New York City law firm” who was monitoring the case for the insurer of several defendants and reporting back to his client on issues involving insurance coverage. He later denied any attempts to speak with the jurors and explained that his proximity to them in the courthouse and surrounding restaurants was merely coincidental.

After speaking with one of the jurors without the attorneys but on the record, and taking sworn testimony from the coverage attorney in the presence of all counsel, the court concluded that coverage counsel “made improper contact with the jury.” The trial judge believed that he “continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks and when they rode the elevators.” Sensing that their favorable jury verdict was in peril, the defense attorneys argued that the court’s ex parte interview of the jury was improper and that if anyone was harmed by the perception of stalking by a suspected defense representative, it was the defendants.

On this critical issue, the court held that prejudice would be presumed. It further found that the jurors were likely influenced by the alleged improper conduct, speculating that they may have felt intimidated and compelled to render a defense verdict.

In matters involving the jury, the court’s message is clear: keep a wide berth of the jury so that even the appearance of improper contact can never be raised. We suspect that the court’s approach of questioning the jurors outside the presence of trial counsel will become a major issue on appeal since defense counsel was never given the opportunity to explore what prejudice, if any, resulted from the perceived conduct of coverage counsel.

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