Daily Dicta: What Happened When Juror No. 10 Went Rogue
Jurors are supposed to be like old-fashioned children: Seen but not heard. That is, sit quietly, pay attention—and for heaven's sake, don't email a lawyer during trial.
April 16, 2019 at 12:13 PM
6 minute read
Jurors are supposed to be like old-fashioned children: Seen but not heard.
That is, sit quietly, pay attention—and for heaven's sake, don't email a lawyer during trial.
I'm looking at you, Juror No. 10 in Riverside County, California superior court
During a nine-week trial—a $25 million fight over the luxury Glen Ivy Hot Springs resort in Corona, California—the juror allegedly sent at least nine emails to plaintiff's counsel, offering opinions on court proceedings and testimony such as “That little p#nk is a freaking liar.”
Still, plaintiff's counsel Paul Derby of Skiermont Derby in Los Angeles didn't report the emails until the third day of jury deliberations, prompting opposing counsel from Venable to cry foul.
“Mr. Derby attempts to whitewash plaintiff's stunning delay in disclosing the worst juror conduct imaginable, by explaining that he was too busy to read all of his emails during trial, and was uncertain that the emails came from a juror,” wrote Venable partners Ellyn Garofalo and Jessica Grant in court papers. “However, even a cursory review of the subject emails would lead anyone to conclude—particularly a lawyer in the courtroom—that they were sent by a juror.”
And not just any juror—one who was biased in favor of the plaintiffs, the Venable lawyers continued. Moreover, they said, it was only after the jury sent a note indicating it “may be leaning in defendant's favor” that plaintiff's counsel finally disclosed the messages.
“I've never had an experience like this in over 20 years of trying cases,” Grant said in an interview.
Declaring a mistrial would reward the conduct by giving the plaintiffs a second chance, she and Garofalo argued. Instead, they urged the court to remove the juror and appoint an alternate.
Judge Randall Stamen agreed, and the jury—minus juror No. 10—last week delivered a verdict for the defense, awarding the plaintiff no money.
Contacted by email, Derby declined comment on the juror's messages but also noted that the court “declined to take any action on the allegation of a professional responsibility violation.”
The case began in 2014, when plaintiff David Wickline and defendant Ingo Schweder—both experienced in developing and managing luxury “wellness” resorts that cater to health, fitness and relaxation—agreed to team up on new projects.
Wickline in his complaint filed last year claimed that he “identified a rare opportunity to acquire the highly profitable Glen Ivy Hot Springs resort in Riverside County,” and spent nearly 18 months putting together a deal to buy it. But then, Wickline said, Schweder engaged “in a deceitful and reprehensible scheme to freeze plaintiff out and steal plaintiff's interest in their company.”
He said he was owed $25 million plus punitive damages for fraud, conspiracy, breach of fiduciary duty, breach of contract and more.
Venable's Grant offered an alternative narrative: “The plaintiff didn't do the one thing he represented to my client he could do, which was raise $100 million to $200 million for a real estate investment fund that never materialized because of his failed efforts—and therefore he didn't get any ownership interest,” she said.
Last month, the case went to trial. According to the Venable team, juror No. 10 sent his first email to Derby on March 19 from an account identified as “Ultimate Drone Vision.”
Given the message— “Ultimate Drone Vision has sent you an email via Gmail confidential mode: The big Pink elephant in the room has been spotted;) no worries . .. you can open it by clicking the link below” —it's 100 percent understandable why Derby would have dismissed it as spam.
But the next two emails, both sent on March 21, were more revealing. One—subject line “FYI”—had screenshots from local news websites about the Glen Ivy resort's storm-related mudslides and closures—on the same day that a defense expert was testifying about the financial impact of that exact issue. The second email contained more local news statements about Glen Ivy closures, with the subject line “That little p#nk is a freaking liar.”
On March 26, Derby got another email, this one with no subject line. It allegedly stated, “Where was your partner today? Not that Mr. O'Kane did a bad job today, he did an excellent job.”
On that day, Derby's co-counsel Paul Skiermont was not in court, and it was the only day that partner Johnny O'Kane examined a witness. (It's like the old horror movie: Oh my god! The call is coming from inside the house!)
Two days later, the mystery emailer asked to speak with Derby after the trial. Derby responded, “Who is this? Not clear from the email address.”
The answer: “I'm the one that you stare [sic] most of the time….lol.can u guess? [smiley face; eye roll emojis].”
Okaaay. Not getting less creepy.
On the second day of deliberations, the person emailed, “Man, all I got to say is, I didn't expect this to be so stressful.”
That was followed by a message that said, “Nice seen [sic] your team again this afternoon, at the courthouse.”
On April 4, the third day of deliberations, came this email: “You are most likely wondering what the heck is going on……. right??”
At that point, Derby came clean to opposing counsel.
He allegedly told Grant that he'd hired a private investigator to find who was sending the emails, and also that his partner, Paul Skiermont, was able to trace the messages to an auto shop in Tustin, California affiliated with Juror No. 10—which led him to believe that was who was sending the emails.
According to Grant, the judge then interviewed the jurors and booted No. 10, who admitted to writing at least two of the messages.
What happens next is still unclear. The verdict was advisory—which means Stamen can still make his own call.
The jury did give Derby one lifeline, finding that his client and the defendant were in a partnership, even though the jurors awarded no damages. Derby said he's still hopeful the judge will find Wickline is “an owner and co-manager of the Glen Ivy Hot Springs resort” and entitled to compensation.
As for Grant, she praised Stamen for handling the case “appropriately” and bringing in the alternate juror. “We very much appreciate it.”
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