Linhart v. Nelson

Opinion

CLARK, J.

Defendants appeal from judgment in favor of plaintiff for personal injuiy following an automobile accident. We granted hearing to consider whether a party has a right to subpoena jurors to testify in support of a motion for new trial.

[643]

Defendants moved for a new trial on the basis of jury misconduct. In support of this motion, they filed their investigator’s affidavit. This affidavit alleges that the investigator interviewed eight jurors following trial, that four jurors indicated liability insurance had been mentioned during the jury’s deliberations, and that three of these jurors also stated attorney fees had been considered. Another juror said that while attorney fees had been mentioned, they had not been used as an argument to increase the award. Further, the jurors discussed the factors relied upon in finding liability and damage. The investigator then prepared affidavits for the five jurors who indicated a willingness to sign. However, when he returned to obtain the signatures he was informed plaintiff’s attorney had telephoned in the interim and “cautioned” the jurors against signing.

1

Only the foreman signed the prepared affidavit.

The foreman’s affidavit states that attorney fees, medical expenses, pain and suffering, and the contention that the greater the award the more money plaintiff’s attorney would receive had been discussed during deliberations.

Plaintiff filed two affidavits in opposition to the motion for new trial—a second affidavit by the foreman and an affidavit of another juror. These affidavits stated that the subjects of attorney fees and insurance had been discussed, but that the discussion had ended after other jurors pointed out that there was no evidence on those subjects and that their verdict was to be based only on the evidence and the law as instructed by the judge. Further, these affidavits state the ultimate award had been based solely on compensation for injury, disability, and medical expense.

Defendants subpoenaed three jurors to testify at the hearing on the new trial motion. The trial court refused to admit testimony from the jurors and denied the motion for new trial.