Texas Supreme Court Overturns Verdict Based on Nine-Word Note From Foreperson

250px-95-98_ford_explorerThe Texas Supreme Court has overturned the verdict in a major torts case based on a nine-word note from a juror. During the second-day of jury deliberations in a rollover cases against Ford, a note was sent to the judge from forewoman Cynthia Cortez of the jury asking, “What is the maximum amount that can be awarded?” Cortez even put a smiley face on the note which sent Ford’s attorneys into a panic to settle the case. They quickly agreed to a settlement of $3 million. It was not until after the jury was dismissed that they learned that Cortez allegedly sent the note without the approval of the jury and that the jury was siding with Ford in its deliberations.

The case involve the rollover of a Ford Explorer based on an alleged faulty design. Rosa Martinez of Brownsville, Texas was paralyzed in the 2002 accident from the neck down. The Ford lawyers eventually secured sworn statements from most of the jurors which portrayed Cortez in a highly unflattering light. Jurors claimed that Cortez effectively grabbed the position of foreperson and proceeded to alienate some of the jurors.

As it turns out, the jury took less than five minutes to find that the roof of the vehicle did not have a design defect by a vote of 10-2 with Cortez in the minority. Some recalled her as the only vote against Ford on the issue. On a second question of whether the vehicle had a defect in handling or stability that caused the accident, the jury again voted heavily for Ford. Cortez had to miss a day of deliberations for personal reason and is described as aggressively pursuing a vote against Ford. There were ten jurors also expressing a position for Ford when the note was sent out of the room. Some said that they did not know about the note while others said they were vehemently opposed to it.

Notably, the trial judge would not allow for a hearing into possible jury tampering and abuse. The Texas Supreme Court will now let those issues to be addressed in addition to a new trial. THe court found that the trial court erred in denying a hearing and affidavits on the issues raised by the other jurors:

First, while Ford interviewed some of the jurors, it did not have the opportunity to question the presiding juror while she was under oath and required to respond under penalty of perjury. See, e.g., Tex. R. Civ. P. 176.6, .8 (requiring a nonparty to comply with a discovery subpoena subject to being held in contempt of court); Tex. R. Civ. P. 199.5(b) (requiring a person whose deposition is taken to be placed under oath); Tex. Penal Code § 37.02 (providing that it is a criminal offense to make a false statement under oath). Additionally, when discovery is denied and because of the denial the evidence sought does not appear in the record, determining harm from the denial is impossible and the party is prevented from properly presenting its case on appeal. See Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990) (orig. proceeding) (“[T]he protective order shields the witnesses from deposition and thereby prevents the evidence from being part of the record. Therefore, it would be impossible to determine on appeal if the denial were harmful error.”); Jampole v. Touchy, 673 S.W.2d 569, 576 (Tex. 1984) (orig. proceeding). The lack of direct evidence about whether the presiding juror was subjected to outside influence probably prevented Ford from properly presenting its case on appeal. Accordingly, the trial court’s abuse of discretion in denying discovery was harmful. See Tex. R. App. P. 44.1(a).

For the opinion, click here.

Recently, we saw a verdict overturned based on the role of a law professor as a foreperson, here.

For the full story, click here

Kudos: Megan Provost

28 thoughts on “Texas Supreme Court Overturns Verdict Based on Nine-Word Note From Foreperson”

  1. Looking ahead, it’s difficult to imagine intelligence officers requesting permission to do anything other than following rigid pre-existing written rules in their efforts to obtain vital intelligence. If an officer runs into a stone wall, as apparently occurred with key terrorists after 9/11, he likely will select one of two options: give up or act without permission.

    Most will simply give up because the alternatives are too risky. If they seek permission and it is granted, they may be prosecuted if the successors of the officials who grant permission decide that it should have been withheld. If they act without permission, they may very well be prosecuted if their actions are discovered.

    The resulting inaction may well leave on the table intelligence that would lawfully have been obtained had the intelligence officer been willing to ask for permission to depart from “the book.”

    Obama’s antics — the release of the memos, the conflicting signals regarding prosecutions, etc — have demoralized the intelligence community and, in all likelihood, have irreparably harmed its ability to gather intelligence with which to protect our country. I’d like to be able to report that at least Obama’s left-wing constituents are happy. But apparently they are not, merely wounding our intelligence services being insufficient.

  2. Mike:

    Had she asked that question in the jury room, would you feel the same way? While you and I may have an in depth knowledge of the system, most jurors do not, and even given her anti-Ford prejudice, she is still entitled to ask questions. While she might have known the question would elicit a response from the parties, she couldn’t be sure of how it would be received, or even that the Judge would decide to share it with counsel. How many jurors know how the system works outside of their presence? I say ask away. If the Judge reads it and the parties react so be it. Isn’t the Judge too complicit by merely asking under your theory? I think you are judging a layperson’s actions by lawyer’s standards and I don’t think that is either fair or accurate or as nefarious as you presume.

  3. A not so great debate

    April 24, 2009

    The Washington Post reports on the debate within Obama’s “inner circle” about whether to release the interrogation details in four top secret memos. According to the Post, by the end it literally was a debate, high school style, with one official selected to argue the “affirmative” and another the “negative.”

    The Post’s report indicates the striking thing about the debate was the absence of any argument in favor of releasing the documents other than partisan gain. Most of the “pro” arguments reported by the Post amount to answers to the “anti” arguments. For example, Defense Secretary Gates supported the disclosures because he thought the information would come out eventually and the White House was willing to promise that CIA officers will not be prosecuted. These are not reasons for releasing the document. They are, in debate parlance, rebuttal not part of the affirmative case in which the advantages of a particular course of action are presented.

    The Post reports that some Obama aides saw an advantage in “focusing public attention on the coldness and sterility of the legal justifications for abusive techniques.” Put to one side the absurdity of the notion that the American public is going to pour over legal arguments to assess their “sterility.” Focus instead on the fact that the debate wasn’t over releasing the portions of the memos that discussed legal justifications. Leon Panetta, the main opponent of full disclosure, argued only that the information about specific interrogation techniques should not be released. Thus, the “sterility” argument was not relevant to the question being debated.

    The real arguments for releasing specific information about interrogation techniques appear to have been purely partisan. According to the Post, Obama’s advisers want to undermine Vice President Cheney’s claim that the Obama administration’s approach to interrogations is making us less safe. Cheney understands this, which is why he shrewedly responded to the release of the information on interrogation techniques by calling on the White House to release documents showing the intelligence gains produced by the tactics in question.

    Cheney wins this argument, I think. The public is unlikely to turn against interrogation techniques solely by virtue of a description of those techniques. It will want to know, in addition, whether the techniques caused terrorists to disgorge information they were withholding. [ John’s post immediately below supports my view]

    Obama himself has presented his most fundamental reason for releasing the information. He wants to show, as he told reporters on Tuesday, that the U.S. lost its “moral bearings” during the Bush years. Indeed, he wants to skew the evidence in that direction through a one-sided release of information that ignores the moral benefits — including protecting lives — of the Bush administration’s actions.

    But why? Doing so may serve Obama’s narrow interest in looking good at Bush’s expense. But how does it serve the national interest to portray the U.S. as having acted immorally for years? Is Obama really narcissistic enough to believe that the takeaway of our enemies and critics will be “Obama cleanses U.S. soul,” rather than “Obama admits U.S. lost its soul?

    Secretary Gates doesn’t share this belief. He believes that Obama’s decision has the potential to produce “a backlash in the Middle East and in theatres where we’re involved in conflict” and “might have a negative impact on our troops.” And, as I showed last night, Dennis Blair well understood the demoralizing effect of Obama’s decision on the intelligence community.

    These would be stiff prices to pay for trying to make Dick Cheney look bad and Barack Obama look good.

    In the Post’s account those who argued against releasing details about interrogation techniques were no more high-minded than the other side. Their main argument seems to have been that releasing the information “could spark a national security debate with conservatives that could undermine Obama’s broader agenda.”

    In other words, the debate over which Obama presided was all about what would help Obama. The debaters obviously knew their audience.

  4. Cortez should have to pay the award out of her own pocket. What an idiot.

  5. Hey, there are no take backs. I read mespo’s comments and reread my own. I find myself still agreeing with myself. The juror was on the losing end of a 10-2 preliminary vote on liability, which meant that plaintiff’s counsel hadn’t done an overwhelming job on the design issue. She then tried to game the system by submitting an editorial comment passing for a question. Of course lawyers have to make judgment calls and live with them, but it is not the function of a renegade juror to participate in that process through the back door. Many years ago I had a jury submit a note to the court asking whether it could award my client more damages than what I had requested. The judge conferred with counsel, called the jury back into the courtroom and informed them that they were to make their decisions in accordance with the jury instructions. Despite my excitement and dreams of early retirement, defense counsel didn’t bat an eyelash. The jury came back with what I had sought and not a penny more. No early retirement and the inevitable appeal later, we compromised on the judgment and settled for less than the award. That’s the way it frequently works. The lady in this instance improperly tried to interject herself into a part of the trial process where she didn’t belong and the plaintiff suffered the consequences.

  6. Mike:

    “Could you three work this out together and come up with a clear cut answer, or is life just like law school where the truth is up for grabs.”


    Once we do that we’d be out of jobs!

  7. mespo,

    Alas, you know me well. 😀


    I’ve seen you in action. You can defend yourself quite well. And I’m lazy enough to let you do it.

    Now if you’ll excuse me, I hear a beach calling my name and mojitos whispering sweet nothings in my ear . . .

  8. /Mespo/AY,
    After reading you, as opposed to Mike A., I find that the case isn’t as clear cut as he presented it. Can I take back my previous acknowledgment? What’s a non-lawyer to do Could you three work this out together and come up with a clear cut answer, or is life just like law school where the truth is up for grabs. Damn, what’s a guy to do without a thing to guide him but his own brains and instinct. It’s so much easier being told what is true and what to do.

  9. Next time, ask Chris Matthews if he would agree to Jessica Lynch being tortured?

    I have never written you before, but this is visceral. The next time anyone makes some type of moral equivocation about torture, I beg you to ask them if Jessica Lynch, captured in a time of war, with potential information regarding the security of Iraq, should have been tortured. Ask them why not?

    It is sickening to allow pundits to not be forced to admit they are only for torture when Americans are not involved. They need to be forced to come to grips with the ramifications of their equivocation.

    I beg you, as someone with a national outlet to force major pundit to either admit they are for torture, or admit they are hypocrites.

    Good luck in your future appearances.

  10. Mespo,

    The first article did not come on until after 6 CST. I am usually up about 5. So I read all my mail. And then target the rest of the day.

  11. Anon:

    You know JT’s been strangely absent these past few days. I like to think he’s leading the effort to put torture investigations on the front burner, but he may just be busy.

  12. Anon:

    I suspect Buddha will be checking in from time to time–holiday notwithstanding. Of course, you don’t need his help or protection.

  13. Anon:

    I agree. A deal is a deal and the motivations are irrelevant absent a real gun to your head. The actions or questions of third parties– even less so. Grow up Ford. Having litigated with them in the past I know them to be saavy, tough, and well represented. Spare me the poor pitiful child persona!

  14. Man-O-Man, what can we think of next. One of the Judges is or was on the Sct of Texas is under Insurance Fraud Investigation I believe.

    I have always been told that the final decision rests with the Jury, the Trier of Fact.

    Ford settled, hmm scared shitless I am sure. But a settlement placed on the record is a settlement and both parties are stuck with it, good or bad. It could have turned out wither way for either party. Bargained for, If I was the Plaintiff I would sue for Specific Performance under the Agreement. I bet the next step for the Court would be to undo Specific Performance.

    I have used it in Criminal Cases when the Prosector reniged.

    This is crazy.

    But the practical realties are.

    Ford, Lawsuit, Jobs. Thats what it really about.

    Now if we could get those fools to do something about, Credit Cards, Mortgage Rates, Mortgage Defaults. I would be impressed.

  15. Personally I think the juror was one smart cookie and I see no evidence of intentional mischief. Anything that fosters settlement is a good thing, and just because she had a verdict question a la Paul Newman’s jury in ” The Verdict,” what’s so improper about that? We tend to patronize jurors–they are after all the citizens we are sworn to ultimately protect. Why can’t she ask a question without approval of the rest of the jurors? Is her vote any less worthy than any of the others? Are her concerns not valid because a majority do not share them? Brava to a free spirit in a conformist situation!

  16. Mike A.,
    Thanks for clearing that up and adding to my knowledge base. I didn’t understand that and now I do.

  17. The juror’s conduct, if it occurred as described, was highly improper and the decision is correct. Mike S., when a judge advises counsel during deliberations that the jury has a question, the question is treated as coming from the entire jury, even though the drafting is done by the foreperson. In this instance, the question should not have even been submitted. Therefore, the problem wasn’t that Ford’s attorneys misinterpreted the note; it was that counsel for both parties would have assumed that the note represented the concerns of the entire jury rather than the mental meanderings of one person. The result would have been the same had the situation been reversed. For example, if the foreperson had been pushing hard for a defense verdict and unilaterally submitted a note to the court inquiring as to whether the jury could vote for Ford and simultaneously assess fees against plaintiff’s counsel, the parties might have reacted by quickly negotiating a settlement highly favorable to Ford. The point is that the note intentionally misled the court and counsel regarding the status of deliberations.

  18. JT,
    What do you think the appeal and overturn ruling would have been if the facts were reversed and the foreman sent a note indicating possible support for Ford’s position causing the client to accept an insignificant settlement? Maybe I’m a suspicious Old Coot, but considering this was Texas and the retro’s have been picking the judges, it seems over solicitous on the Appeals Courts behalf to give ford a “do-over” based on their misinterpretation of a given message from the foreman.

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