Some cried “foul,” but hiring used jurors is an ever more common practice, although it hasn’t been talked about much. And while in most states hiring a juror is not a crime or unethical under professional conduct rules, some in the legal community think it’s just not right.
Lawyers hiring former jurors goes back at least two decades. [NLJ, 12/30/85]. In a 1985 rape case, Michael Sherman, now of Sherman, Richichi & Hickey of Stamford, Conn., hired one of the five jurors who voted to acquit on the six-person jury. “I didn’t use her for jury selection,” Sherman said. “I asked her how each piece played the first time.”
Not only did the jury convict his client the second time around, but in response to his perceived affront to the jury system, Connecticut passed a statute making it a misdemeanor for a juror to get paid to advise or consult on a retrial or a separate trial “arising out of the same transaction or offense involving the same or different parties.”
Sherman sees the humor in this. “Some people get a bridge named after them; I get a misdemeanor,” he said.
While an attorney who hires a former juror is not a subject of the statute, the lawyer might be liable for aiding and abetting a misdemeanor, which is a misdemeanor in Connecticut, and he or she would almost certainly face charges of professional misconduct.
At times, jury consultants will hire used jurors — one degree of separation from their lawyer-clients, but not always in cases that have been declared mistrials.
“Sure, we’ve done it,” said James Dobson, the director of Lynbrook, N.Y.’s DOAR Litigation Support & Trial Services. “For certain cases where there are implications for other cases or because it was a significant matter … but it’s far more the exception than the rule.”
Dobson asserted that DOAR would only pay an honorarium for a juror’s time, “but nothing beyond that. We would not over-incentivize or competitively bid for their services.”