If a judge allows a lawyer to question jurors, then the lawyer should take advantage of the opportunity in a respectful way.

I would like to speak to the jury after the verdict. Do I need the judge's permission and what can I say to the jury? 

Samuel C. Stretton.

The answer is one always needs judicial permission. In federal court there is a specific rule.  Pennsylvania Rule of Professional Conduct 3.5(e) requires judicial permission. In terms of what one can say, clearly one should not criticize a jury. As the jury for constructive criticism and if there was anything the lawyer could have done better. One should not be angry at the jury verdict and nor should one criticize the jurors or point out things that weren't of record or speak about how bad the other side was. Jury duty is a great privilege and many people benefit from jury duty. Most jurors will bond at some point and become somewhat friendly. And they also gain appreciation and respect for the legal system.

One of the worst things a judge or a lawyer can do is after the verdict tell the jury they made a mistake or point out things that weren't allowed to be introduced to try to make the jury feel bad. This writer remembers one time after a criminal trial on very serious charges where a jury acquitted, the assistant district attorney went back and unfolded the list of prior crimes this individual had been either arrested or convicted of. This created a very bad scene, because two of the jurors started crying and wanted to change their verdict. The assistant DA was wrong. Just because she was angry at the verdict didn't mean she should spoil the experience for the jurors. The jurors based their verdict properly on the evidence presented. The prior record was not admissible.

As a result, some judges just won't let lawyers talk to jurors particularly if their questions will be mean-spirited. The Rules of Professional Conduct imply a lawyer should not talk to a juror after discharge without the court's permission. Under Rule 3.5(c), the following is noted: "A lawyer shall not communicate with a juror or perspective juror after discharge of the jury if:  communication is prohibited by law or court order; the juror has made known to the lawyer a desire not to communicate; or the communication involves misrepresentation, coercion,  duress, or harassment."

Comment 3 to this rule notes that a lawyer may not engage in improper conduct during the post-trial jury communication. As a result, some judges have a blanket prohibition. If a judge says no, then one should not talk to the jury.

Hopefully some judges will reconsider and let lawyers, particularly young lawyers, talk to jurors to gain the insight that the jury deliberation might provide. The key is how to question the jurors. A lawyer should ask the jury about constructive criticism or comments that bothered the jury concerning how the lawyer presented the case. It is a good experience for a lawyer to hear how jurors perceive their conduct or activities or presentation of evidence. Second, a lawyer might ask what the jurors would have liked to have seen presented by the lawyer. Third, one might want to ask if there was anything about the jury experience that bothered or upset the jurors.

Communications with jurors can enlighten the lawyer and give them a different perspective of trial presentation. It can also at times be frustrating. Sometimes jurors will pick something that just seems bizarre. On the other hand, lawyers should know how the jurors view evidence and presentations in terms of presenting future cases.

Therefore, to answer the question, if the judge says no to talking to jurors, that means no. A lawyer can be found in contempt or disciplined for violating a judicial order. But if the judge does allow a lawyer to question jurors after verdict, then the lawyer should take advantage of the opportunity in a proper and respectful way. But never should a lawyer do anything to undermine a jury verdict or upset the jurors.

Ex-parte communication can be very serious and can result in professional discipline.

A judge accused me of ex-parte communication. I pointed out to the judge that I copied the other side on the letter and I thought that would suffice. Am I right?

You are wrong. Obviously, the traditional view of ex-parte communication is going and talking to a judge about a case without the other side being present or being notified. That is classic ex-parte communication and is prohibited except in emergency-type of situations.

Rule of Professional Conduct 3.5(e) states as follows: "A lawyer should not communicate ex parte with such a person during the proceedings unless authorized to do so by law or court order. Such a person is a judge or the arbitrator or person deciding the case."

Comment 2 to Rule 3.5 is very clear: "During a proceeding, a lawyer may not communicate ex-parte with persons serving in an official capacity in the proceeding, such as judges, masters, or jurors, unless authorized to do so by law or court order."

Rule 3.3 of the Rules of Professional Conduct under Subsection D, notes as follows: "In an ex-parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse."

Under Comment 14 to Rule 3.3, the following is noted: "Ordinarily, an advocate has a limited responsibility of presenting one side of the matter that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex-parte proceeding, such as an application for a temporary restraining order, there is no balance or presentation by opposing advocates. The object of an ex-parte proceeding is nevertheless to yield a substantially just result. A judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision."

Therefore, if an ex-parte proceeding is allowed because of some legal emergency, it is a duty of the lawyer to point out the opposing case law and opposing position in some detail to the judicial officer. Also, both the lawyer and the judicial officer should make every step to try to locate the opposing lawyer and give them a chance to make their presentation.

Except in those extreme emergency type of situations, there is no reason for any ex-parte communication to ever take place. The Code of Judicial Conduct has gotten very strong on prohibiting ex-parte contact with a judge.

But, ex-parte means more than just talking to the judge. If a lawyer sends a letter to a judge on substantive issues as opposed to scheduling issues or administrative issues, even if the other side is copied, that letter is ex-parte. The reason is that when one sends a letter, there are time periods for responding. If a lawyer raises an issue with the judge, the way to do so is by motion. Under the Rules of Criminal or Civil Procedures, there are times to respond to those particular motions.  But a letter does not allow a time period. So, if opposing counsel gets a letter, they don't know if there is going to be a response time or not.

Therefore, ex-parte means a little more than just not talking to a judge or communicating with judge without notifying the other side. It also means communicating with a judge on substantive matters without using the normal court process or procedure even though opposing counsel is copied on the letter. Lawyers tend to think if they copy the opposing counsel everything is well and good. But that is not the way the practice of law is supposed to happen.

These letters, where there is no legal way to respond necessarily, can be very damaging and can affect the fairness of the judge potentially.

There is an old opinion by the Philadelphia Bar Association's Professional Guidance Committee cited as Opinion 98-15. This opinion talks about what is ex-parte and what is not. The committee criticizes any kind of communication that's outside the record by one party or another. Ex-parte communication can be very serious and can result in professional discipline depending on the magnitude of the breach of professional conduct.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.