Wouldn’t it be great if you could just hang out in the venire assembly room and observe all the potential jurors? You could make note of conversations they have, what they’re wearing, books they’re reading, and generally get a head start on the opposition when it comes to evaluating preemptive strikes. If your firm hired a jury consultant, they could get a jump on working out the psychological profiles of the potential jurors.
That’s probably why courts don’t let lawyers hang out in the venire room.
But that didn’t stop one partner from sending his associate on a fact-finding mission against the court’s express rules. And now the whole Biglaw defense team faces a motion from a cranky adversary….
This story comes to us out of Houston, where the lawyer for JSW Steel, specifically Hunter Barrow of Thompson & Knight, apparently sent an associate in to check out the jury talent — because if someone is going to get in trouble, let it be an associate, amiright?
This motion is necessary because JSW Steel made the indefensible decision to sneak its counsel into the venire assembly room that only prospective jurors and court personnel may occupy. Without the Court’s permission, and without telling plaintiff what it was planning to do, JSW had its lawyer quietly enter the room with the veniremen, unannounced, alone among all counsel in the case. Notepad in hand, the JSW lawyer remained in the jury room watching and critiquing the veniremen for 90 minutes, while they assembled, interacted, and filled out the jury questionnaire. The lawyer only left after court personnel found out she was present, identified her as a lawyer with no business being there, and told her to leave.
Well, these are just allegations, right? Apparently not, because according to the motion, Barrow is admitting that his associate took notes on potential jurors. And what’s more, he’s not turning over those notes:
What we know — because JSW now admits this much — is that its counsel evaluated the 35 potential jurors for over an hour, took notes about what she saw, and then reported back to the entire defense group. At this point, we do not know what the notes reflect, since JSW classifies the notes — and the later communications among JSW lawyers and then the defense group — as confidential work product protected from disclosure. And that is precisely the issue: JSW sent its lawyer into the jury room as part of its defense efforts, to (secretly) gather intelligence about the veniremen to help JSW, and the rest of the defense team, pick a favorable jury. JSW was looking to gain an edge, even if surreptiously.
Hilarious. “Were we spying on the jury to gain an advantage in the litigation? Well, I won’t say that, but I won’t turn over our notes on the grounds that they were taken to gain an advantage in the litigation.” Boom!
Barrow allegedly shared these notes with the rest of the defense group, including Chris Hanslik, of BoyarMiller; David Gersch, of Arnold & Porter; and Karl Stern of Vinson & Elkins. Apparently none of them have gone out of their way to distance themselves from Barrow.
The court hasn’t weighed in on this yet, and it may be that Barrow and the rest of the defense team did not commit any discipline-worthy breaches, but it still takes some chutzpah to send a lawyer into a room where court officials are telling you not to go.
Actually, it would take some chutzpah to go in there yourself. It’s actually kind of cowardly to send an associate in there to get in trouble.
UPDATE: So the judge didn’t need much time with this one.
Minute Entry for proceedings held before Judge Kenneth M. Hoyt. PRETRIAL CONFERENCE held on 2/10/2014. Jury trial is rescheduled and venire panel is excused prior to entering the courtroom. Jury Trial reset for 2/14/2014 at 10:30 AM in Courtroom 11A before Judge Kenneth M. Hoyt. Appearances: Christopher Paul Hanslik, Karl S Stern, Hunter Mac Barrow, R Paul Yetter, David P. Gersch.(Court Reporter: J. Sanchez), filed.(chorace) (Entered: 02/10/2014)
The full filing is available on the next page….