Lawyer’s Right to Interview Jurors

Marcia Coyle

Forwarded on 02-11-2010

Attorneys may have a First Amendment right to interview jurors in trials in which they did not participate if their purpose is to educate a segment of the bar, according to a federal appellate court.

Calling it a “novel” issue, a panel of the 10th U.S. Circuit Court of Appeals said it was “uncomfortable” addressing the question in the first instance. Instead, the three-judge panel on Feb. 3 ordered a district court to vacate its terse ruling rejecting a request by the Oklahoma Employment Lawyers Association and to reconsider the request in a “meaningful exercise of its discretion.”

The employment lawyers’ group sought to contact jurors three years after their service in Clyma v. Sunoco Co., a job bias suit brought under the Americans with Disabilities Act. The association told the district court that it wanted access to the jurors “for the purpose of providing educational information to members of the bar regarding jury dynamics in employment law cases.” It argued that it had a First Amendment right of access to the jurors.

A rule in the U.S. District Court for the Northern District of Oklahoma states: “At no time, including after a case has been completed, may attorneys approach or speak to jurors regarding the case unless authorized by the Court, upon written motion.”

The three-judge panel, led by Senior Judge Bobby Baldock, said the association’s alleged First Amendment right “surely does not match the media’s right to access information for the purpose of informing the political thought and behavior of the general public.”

However, the panel added, “OELA’s request for such access in order to prepare a program to educate a segment of the bar, despite countervailing concerns related to juror privacy and the administration of justice, may not be entirely devoid of First Amendment implications.”

The panel said this issue of first impression “certainly requires the district court to exercise some discretion in ruling upon OELA’s application and therein lies the fundamental problem in this case.” By denying the association’s request without any substantive explanation, the panel could not find the district court exercised any meaningful discretion and that failure, it said, constituted an abuse of discretion.

Because the underlying job bias case settled after a verdict in favor of the plaintiff, no one opposed the association’s request to contact the jurors. The 10th Circuit appointed two lawyers — former 10th Circuit clerks — as amicus curiae to address the First Amendment issue and a standing question.

James Lebeck, an associate with Vinson & Elkins in Houston, and John Partridge, an associate with Gibson Dunn & Crutcher in Denver, said the district court’s order was “an impermissibly broad prior restraint on protected expressive activity.”

The fact that the association was not involved in the underlying litigation was a distinction that mattered under the circuit’s precedent, they said, “because it diminishes the government’s interest in shielding jurors from contact. Because it had no role in the underlying litigation, OELA has little, if any, incentive to upset the jury’s verdict.”

Joining Judge Baldock in sending the association’s request back to the district court were Judges Jerome Holmes and Eugene Siler of the 6th Circuit, sitting by designation.