District judges reverse reprimand against attorneys over copying notes

RICHMOND, Va. – U.S. District Judge Frederick Stamp should not have reprimanded attorneys Alan Thomas and John Southerland of Charleston, the U.S. Fourth Circuit Court of Appeals ruled Aug. 7.

Circuit Judges Blane Michael of Charleston and William Byrd Traxler of Greenville, S.C., held that Thomas and Southerland didn't disturb justice by copying juror notes after a trial in Martinsburg.

Michael and Traxler stressed that a clerk invited all attorneys into the jury room, to pick up exhibits.

"We cannot fault the lawyers for seeing what was in front of them and remembering what they had seen," they wrote. "Any error, therefore, would have to be in peeking under the top sheet and in copying that information, and in this we simply can find no grievous harm."

Stamp himself knew he went too far at a hearing, by accusing Thomas and Southerland of "bad faith." He left the words out of his written order.

Michael and Traxler reversed him on bad faith anyway by interpreting the written order as a supplement to what he said at the hearing.

Thomas and Southerland represented Ford Motor Company in a personal injury trial that ended with a verdict in favor of their client.

A clerk asked for help with exhibits in the jury room. An easel in the room displayed notes of the deliberations.

Dejected attorneys for plaintiff Andrew Shatz gathered their things and departed.

Thomas and Southerland lingered at the easel. They flipped the pages. The notes helped them see how they had won.

Thomas asked Southerland to copy all of it. Southerland scribbled until someone told him the courthouse had to close.

Stamp heard about it three days later.

According to Michael and Traxler, a law clerk told him someone copied the jury's flip chart after the trial but she did not know who he was.

If she meant to inflame Stamp, she succeeded. He signed an order directing all parties to identify the man at the easel. He set a hearing.

When Shatz's attorneys read the order, they moved for a new trial.

Thomas notified Stamp that Southerland copied the flip chart at his request. Thomas apologized for any misunderstanding.

He wrote that they acted out of curiosity, for professional information and for personal development.

Thomas and Southerland surrendered the notes. In affidavits they swore they kept no copy.

Their contrition, however, did not soothe Stamp.

At the hearing, he admonished them that they needed his permission to enter the jury room.

He said they invaded the jury's deliberations. He said the notes reflected the jury's thoughts. He said the notes may have represented division prior to unanimity.

He told Thomas and Southerland they violated local rule 47.01, requiring an order before an attorney can communicate with a juror. He declared bad faith, misconduct and breach of responsibilities. He reprimanded them. He censured them.

He followed with a written order. Although he dropped bad faith, he added a new accusation. He wrote that Thomas and Southerland broke federal rule 606, prohibiting the use of juror testimony to challenge a verdict.

He wrote that they "... have required this court to hold additional proceedings, have complicated the ground for post-verdict motions, have violated the sanctity of the jury room and have interfered with this court's ability to achieve an orderly and expeditious disposition of this case, which necessarily continues through the time available for post-verdict motions."

He ordered Thomas and Southerland to pay Shatz's attorneys $14,655.40, for their fees and expenses in the inquiry and the hearing. He denied a new trial for Shatz.

Thomas and Southerland appealed the reprimand, the censure and the fees. They retained Rebecca Betts, Stephanie Thacker and Peter Markham, of Allen, Guthrie, McHugh and Thomas in Charleston.

Betts represented them at oral argument this May. Christopher Brinkley of Masters Law Firm in Charleston represented Shatz. Michael, Traxler and Circuit Judge Emory Widener of Abingdon, Va., heard the arguments. Widener did not participate in the decision.

Michael and Traxler found Stamp's reasoning hard to follow.

"The court determined that by reading and copying the jury's notes on the easel, Thomas and Southerland essentially communicated with the jury without the court's permission," they wrote.

They wrote that local rule 47.01 aims at preventing lawyers from bothering jurors after they have completed their service. They wrote that federal Rule 606 restricts what a juror can testify to in proceedings to set aside a verdict.

They wrote that counsel's conduct implicated neither of those concerns.

"Not only was no juror contacted, but it is doubtful that any juror ever knew what transpired," they said. "There was no harassment of any juror by the attorneys, nor has there been any effort by Thomas or Southerland to challenge the verdict on the basis of what the jurors wrote.

"The jury had finished its deliberations, reported its verdict, been discharged, and left the building."

They wrote that the jurors didn't obliterate or destroy the notes, and they said nothing in the record suggested bad faith.

"Indeed, these attorneys were invited into the jury room," they wrote.

They wrote that federal code authorizes sanctions when bad faith multiplies proceedings with excess costs resulting for the opposing party.

"In fact, the evidence is uncontradicted that the lawyers were motivated by a desire for general professional development rather than any purpose related to this particular case," they wrote.

Michael and Traxler agreed with Stamp on one point. They didn't think a clerk should have taken the lawyers to the jury room.

They wrote that the clerk of court could have avoided this problem if he had promptly performed his responsibility.

"It is the duty of the clerk of court to see that those items admitted into evidence, and only those items, are taken to the jury room for the jury's use during its deliberation," they wrote. "It is likewise the duty of the clerk of court to return those items to the courtroom after the trial has ended."