On June 9, 2016, the United States Supreme Court undid a previously well-established and generally widespread rule in American civil jurisprudence, allowing a trial court to re-empanel a jury—after it has been discharged at the end of the case—to continue deliberations to address a problem with their verdict. Every trial and appellate attorney should be aware of the potential impact of this ruling before your next trial.
Specifically, in Dietz v. Bouldin, No. 15-458, the Supreme Court held that a federal district court has the inherent “limited” power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury’s verdict. Dietz stemmed from an auto negligence lawsuit. The defendant admitted fault, and stipulated to $10,136 in medical expenses. The jury returned a verdict for the plaintiff, but awarded $0 damages. The judge then discharged the jury.
Several minutes later, the judge realized the error and ordered clerk to bring back the jurors–all of whom returned. After questioning the jury, and over the plaintiff’s objection, the judge re-empaneled the jury, citing the interests of judicial economy and efficiency. After receiving clarifying instructions, the jury reconvened for deliberations and returned a verdict for $15,000, on which the district court entered judgment.
The Ninth Circuit affirmed. 794 F.3d 1093 (2015). And in a 6 to 2 decision, delivered by Justice Sotomayor, the Supreme Court did likewise. In affirming the Ninth Circuit, the Court emphasized that a district court’s inherent power should be a “reasonable response to a specific problem” that cannot run afoul of any rule or statute. The Court found that the district court did not violate Federal Rule of Civil Procedure 51(b)(3) because it rescinded its discharge order before it issued the final judgment. And the Court rejected the plaintiff’s call for a categorical ban on re-empaneling a civil jury after discharge, as well as a proposed discharge test requiring that the jurors remain inside the courtroom.
The Court cautioned, however, that a district court’s inherent power in this regard should be exercised with restraint and after evaluating a number of factors, including:
- Whether there is any suggestion of prejudice.
- The delay between the discharge and recall. Although the amount of time is a matter of the district court’s discretion, the longer the discharge, the greater the potential of prejudice.
- Whether the jurors have discussed the case with anyone since discharge, including court staff, lawyers, witnesses, friends, etc.
- The reaction to the verdict—the more emotionally-charged the reaction, the more likely the jurors will question their decision.
- Whether the jurors accessed their phones or the internet, including social media, following the discharge.
The Court also addressed an issue related to the procedure upon recall, explaining that while individual questioning of jurors could be the better practice in many circumstances, here, the plaintiff waived any objection by failing to object below to the district court’s group questioning.
Beyond the immediate holding, it remains to be seen whether this ruling could be argued to relax the generally recognized rule requiring a party to raise objections to the verdict while the jury is still empaneled and before discharge.
If you have any questions about this decision or preservation of error in general, please contact Wendy Lumish
or Rob Wise