BETWEEN A ROCK AND A HARD PLACE: AN EXCESS VERDICT PROGRAM CAN SAVE THE DAY

By Michael Pollak

Background

We all know that every so often a jury goes wild, or a case has been mis-evaluated, causing a verdict in excess of the policy limits. Lots of articles have been written on appellate practice and some on new trial motions, but few, if any, have discussed the overall strategy for handling a case between the time of an excess verdict and a notice of appeal. The filing of a motion for new trial, when handled astutely, presents an excellent opportunity for settling the case on terms favorable to the defendant.

An excess verdict is expensive for insurance carriers, and the time after an excess verdict is an awkward one for most trial lawyers. Both the carrier and the lawyer have been rocked by the defeat, and neither may know how to handle what happens next. Trial lawyers usually do not handle motions for new trials or appeals. While appellate lawyers are familiar with the law in those areas, they typically do not work with investigators, talk with jurors, or negotiate settlements. To deal with motions for new trial and settlement effectively, an attorney must be able to combine the writing and argument-structuring skills of appellate counsel with the investigative skills of trial counsel. Also, to effectively negotiate a settlement for less than the amount of the excess verdict, an insurance carrier needs to have a plan in place before the trial begins. At least a few times a year, our firm is retained by an insurer to represent an insured in filing a new trial motion as part of our firm's Excess Verdict Program. This article gives an overview of the Program.

The Law Regarding New Trial Motions

There are a few different post-trial motions.1 However, in our experience, it is a motion for a new trial, based especially on jury misconduct in deliberations, that is most likely to succeed -- or at least to lead to a settlement below the verdict amount.

A motion for new trial is entirely statutory. Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166. It permits the court to re-examine any issue of fact or law. C.C.P. §§656, 657.2 The court can grant a new trial, for a prejudicial error, on any one of the seven grounds of §657:3

New trial motions contain jurisdictional time limits that are fertile ground for malpractice for the unwary attorney. A notice of intent to move for a new trial must be filed within 15 days of service of notice of entry of judgment.4 §659. The time for filing the notice of intent cannot be extended by stipulation or court order. There is no extension of time for service by mail. §659. Unless a timely notice of intent is filed, the court has no jurisdiction to grant the motion. Pacific Trends Lamp and Lighting Products, Inc. v. J. White, Inc. (1998) 65 Cal.App.4th 1131, 1135.

The points and authorities and declarations are due ten days after the notice of intent is filed. The opposing party then has ten days in which to file opposition. §659a; California Rules of Court, Rules 203, 503. The time limits for each may be extended for an additional period of up to 20 days. §659a. §659a does not specifically mention a reply brief, but if time permits, the moving party should file one based on §1005.

The trial court's power to rule on a motion for a new trial expires 60 days from the service of notice of entry of judgment.5 This too is jurisdictional. §660.

Jury Misconduct

The most likely ground for a successful motion for new trial is jury misconduct in deliberations.6 Because jury deliberations are private and not reported, and because most jurors are not interviewed in detail after a trial, in most cases the parties never know whether their jury committed misconduct. However, in our experience, about 30-40% of the time the jury commits misconduct that at least raises a colorable issue of whether it was prejudicial enough to warrant a new trial.

The primary example of jury misconduct concerns personal knowledge outside the evidence in the case. It is misconduct for jurors to communicate to fellow jurors special personal knowledge or experience on the matters at issue in the case, or other information outside the evidence in the case. In Re Malone (1996) 12 Cal.4th 935, 963-964. Although the jurors are instructed that they are to decide all questions of fact from the evidence presented at trial and not from any other source (BAJI 1.00.5), well-meaning jurors often have information they learned of outside the evidence concerning a matter in dispute and tell their fellow jurors what they know. Examples of this include a juror discussing his own experience with back pain (Smith v. Covell (1980) 100 Cal.App.3d 947, 952-53); a juror who, before the trial, obtained information regarding railroad crossings (McDonald v. Southern Pacific Trans. Co. (1999) 71 Cal.App.4th 256, 263-66); and a juror describing personal experience with the injury that was the subject of the medical malpractice action (Jones v. Sieve (1988) 203 Cal.App.3d 359, 365-68). Examples from cases we have recently handled include a jury improperly considering a juror's own headaches in a case in which the plaintiff complained of the same type of headaches and a juror discussing his personal experience with the time for rehabilitation from a serious accident.

Jury misconduct also occasionally occurs in other respects, such as a jury agreeing to award a plaintiff attorney's fees in a bodily injury action or agreeing to award other non-recoverable damages (Krouse v. Graham (1977) 19 Cal.3d 59, 80-82), the jury agreeing to a quotient verdict (Chronakis v. Windsor (1993) 14 Cal.App.4th 1058, 1064-1069; BAJI 15.33), and jurors concealing bias during voir dire (Enyart v. City of Los Angeles, supra, 76 Cal.App.4th 499, 509-11). It is misconduct for a juror to make statements during deliberations reflecting that the juror made up his or her mind on the case before it was submitted to the jury. Clemens v. Regents of the Univ. of Calif. (1970) 8 Cal.App.3d 1, 17-19. It is improper (but not necessarily prejudicial misconduct) for a juror to bring a cell phone into the deliberation room. People v. Fauber (1992) 2 Cal.4th 792, 837-38. It is misconduct for the jury to disregard the court's instructions. Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 324-29.

Preparation and Strategy

The preparation for the new trial motion begins long before the jury has returned with an excess verdict. Because one of the key grounds for a new trial motion is jury misconduct, the first step is, before the trial, to have an investigator lined up with experience in interviewing jurors. The attorney responsible for the Excess Verdict Program should make sure that the investigator understands the overall approach to obtaining a successful new trial motion and that the investigator knows to ask the jurors the right questions and follow up questions. Another precaution is for the trial attorney, during jury selection, to write down the first and last name and area of residence of each juror, so that it will be easier for the investigator to find the jurors afterwards. A last name alone, with no area of residence, likely will not help find the juror.

Once the trial concludes, the trial attorney should try to interview as many jurors as possible before they leave the courthouse and try to get their telephone numbers. Although the trial attorney often is interested in getting feedback from the jurors regarding the attorney's own performance, it is far more important at that critical point for the attorney to help his or her client by asking questions directed towards possible jury misconduct.

The trial attorney should also quickly request the court reporter to begin preparing the transcript of the trial, for the new trial motion and a possible appeal.7 If the trial was short, the transcript sometimes can be prepared soon enough to be used for the motion for new trial, particularly if there is a delay in the judgment being entered. If the transcript of the entire trial cannot be prepared before the points and authorities and declarations are due, priority should be given to transcribing argument on evidentiary rulings that may have been in error, any instances of opposing counsel's misconduct, and the jury selection. Thus, it is critical that trial counsel keep notes during trial, so that he or she can have the court reporter transcribe the most important portions of the transcript first. Jurors' statements during jury selection may show concealment of bias. The attorney preparing the new trial motion will not know whether bias is an issue until the jurors have been interviewed and you determine if any jurors expressed bias during the deliberations.

.After the verdict, the insurance carrier may wish to retain new attorneys for the motion for new trial and possible appeal and to attempt to settle the case. If the insurance carrier is unwilling to indemnify its insured for the excess portion of the judgment, the carrier should retain separate counsel to represent its interests on the issue of whether the carrier must indemnify the insured for the amount in excess of the policy limit based on any unreasonable failure to settle within policy limits. Of course, the attorney representing an insured must treat the insured as his or her primary client and cannot take a position against the insured on that issue.

If an attorney other than trial counsel is retained for the new trial motion and possible appeal, he or she should meet with the trial attorney right away, to see if there are grounds for a new trial motion or an appeal based on what occurred at trial. The attorney preparing the new trial motion should tell the investigator about the case and any particular questions to be asked.

The next step is for the investigator to contact the jurors for interviews. It is important that this be done soon after the verdict. Not only do the jurors forget about the details of their deliberations, but they are eager to get on with their lives and are less willing to talk about the case to the investigator as time passes.

Usually an investigator can find jurors if the investigator has the juror's full name and area of residence. However, if the trial attorney neglected to get that information, there is another way to get the jurors' names and addresses: §237 allows for a petition to obtain that information, unless the court determines that a compelling interest requires that it be kept confidential. Filing such a petition, however, alerts the plaintiff's attorney that you will be contacting the jurors. The plaintiff's attorney can then do a preemptive strike, by encouraging the jurors not to talk to the defense attorney's investigator. The majority of the jurors (who sided with the plaintiff) likely will be more receptive to contact from the plaintiff's attorney or investigator than from the defense attorney's investigator. The better practice for the defense is to find the jurors without a petition and contact the jurors without letting the plaintiff's attorney know of it and before the plaintiff's attorney contacts them.

Care and sensitivity must be shown in contacting jurors. California Rules of Professional Conduct, Rule 5-320(D) prohibits an attorney from asking questions of a former juror that are intended to harass or embarrass the juror or to influence the juror's actions in future jury service. The investigator should consider himself or herself bound by that rule. There are also restrictions that go beyond the rule. Some jurors resent being contacted after the trial and may complain to the trial judge simply that they were contacted. Although most people work during the day, they may take offense at being visited at home in the evening. Other jurors may not like an investigator coming to their residence at all without first calling or writing. Personal contact often gets better results than contact over the phone, but it is sometimes better to call first, so as not to irritate a juror. If a juror complains to the trial judge about the defense attorney's investigator, that could discourage the trial judge from granting an otherwise meritorious motion for new trial. Regardless, it is a good idea for its own sake for an investigator to be considerate in contacting jurors.

The next step is to prepare the notice of intention to move for new trial. The timing of filing the document is important. As mentioned, if it is filed too late, the court loses jurisdiction to consider the motion for new trial. On the other hand, the notice of intention starts the time running for filing declarations and points and authorities. If the notice if filed too soon, it limits the defense attorney's time to file those documents.

After that comes the points and authorities and declarations. If there is evidence of a juror's misconduct, it needs to be presented to the court in a declaration from a fellow juror. Evidence Code §1150(a) allows juror declarations concerning statements made or conduct, conditions, or events occurring of such character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing the juror to assent to dissent from the verdict or concerning the mental processes by which the verdict was determined. Proper subjects for juror declarations include jurors' agreement to award non-recoverable damages (Krouse v. Graham, supra), jurors' discussion of personal experiences or other information outside the evidence in the case (McDonald v. Southern Pacific, supra), and jurors' agreement to a chance or quotient verdict (Chronakis v. Windsor, supra). Juror declarations are not admissible if they discuss the effect of improper influences on the jury's mental processes (Akers v. Kelly Co., Inc. (1985) 173 Cal.App.3d 633, 655-59), juror confusion (Ford v. Bennacka (1990) 226 Cal.App.3d 330, 332-36), or the jurors' intention as to their verdict (Cove, Inc. v. Mora (1985) 172 Cal.App.3d 97, 99-103).

Settlement Opportunities

The filing of the motion for new trial, together with the possibility of an appeal, are the insurance carrier's leverage in attempting to settle for less than the verdict amount. The time between the verdict and the hearing on the motion for new trial is often an opportune stage to settle the case. While the uncertainty of a jury's reaction to the evidence is gone, it is replaced with new uncertainties raised in the motion for new trial. The plaintiff's attorney is usually eager to discuss the case, sometimes initially if only to bask in his or her glory.

The timing of the initial contact with the plaintiff's attorney for settlement depends on the circumstances of the particular case, but often is best accomplished after filing the declarations and points and authorities and before the plaintiff's attorney has spent time opposing the motion. The deadline for the trial court's jurisdiction to decide the motion for new trial forces the parties to get serious about settlement right away.

A representative from the carrier experienced in negotiating settlements for large amounts should attend the settlement meeting. Ideally, the same person should handle all settlements in the Excess Verdict Program, because the issues in new trial motions and appeals are not the same as issues before trial. The euphoric plaintiff must be made to realize that the verdict could be thrown out on the motion for new trial or an appeal and that, if there is an appeal, even if the plaintiff prevails, the plaintiff will not get paid for a few years. Just because one jury rewarded the plaintiff handsomely does not mean that another jury will do the same. With skillful negotiation, a settlement usually reduces the verdict, sometimes substantially.


End Notes

1 Those besides a motion for new trial include a motion for judgment notwithstanding the verdict (JNOV) (C.C.P. §629) and a motion to vacate a judgment (C.C.P. §663). They are beyond the scope of this article.
2 Unless stated otherwise, all further statutory references are to the Code of Civil Procedure.
3

  1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. §657(1). This ground includes evidentiary rulings, attorney misconduct, and some juror misconduct, such as errors in the formation of the jury. This ground also includes erroneous rulings made before trial, even by a different judge. Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1508-09.
  2. Jury misconduct. §657(2); Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 506-11. The same improper acts of the jury may be characterized either as irregularity in the proceedings of the jury or jury misconduct. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 104.
  3. Accident or surprise against which ordinary prudence could not have guarded. §657(3); Hata v. Los Angeles County Harbor/UCLA Med. Ctr. (1995) 31 Cal.App.4th 1791, 1806.
  4. Newly discovered evidence material to the outcome, which the moving party could not, with reasonable diligence, have discovered and produced at trial. §657(4); Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161-62.
  5. Excessive or inadequate damages. §657(5). The trial court reweighs the evidence and grants the motion only if, after reviewing the entire record, it believes the jury clearly should have reached a different verdict. §657. In ruling on a motion for a new trial based on excessive damages, the trial court sits as an independent trier of fact. West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 876. The trial court has broad discretion to reweigh the evidence, reassess credibility, and disbelieve witnesses. Valdez v. J.D. Diffenbach Co. (1975) 51 Cal.App.3d 494, 512. This is sometimes referred to as the court's power as the "thirteenth juror." People v. Lagunas (1994) 8 Cal.4th 1030, 1038.
  6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. §657(6); Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1343.
  7. Error in law, occurring at the trial and excepted to. §657(7); Maher v. Saad (2000) 82 Cal.App.4th 1317, 1325.

4 If no notice of entry of judgment is served on the moving party, the moving party has 180 days after entry of judgment. §659.
5 If no notice of entry of judgment is served on the moving party, the court's power expires 60 days from the filing of the first notice of intention to move for a new trial. §660.
6 Of course, other grounds for a motion for new trial should be explored.
7 If the trial attorney's notes do not show the jurors' first names and areas of residence, the attorney might try to get an expedited transcript of the jury selection only.



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