Court's Denial of Request to Poll Jurors Is Reversible Error

• Pages: 23-23
• Date: 01 October 2024
• Author: Michelle C. Hayes
• Subject Matter: Civil Law

n U.S. Securities and Exchange Commission v. Sargent, the

U.S. Court of Appeals for the First Circuit held, as a matter

of rst impression, that the denial of a request to poll indi-

vidual jurors is per se reversible error under Federal Rule of

Civil Procedure 48(c), notwithstanding counsel’s failure to

cite Rule 48 at the time of the initial request. ABA Litigation

Section leaders note that his type of procedural error can be

avoided if litigators are always prepared to cite specic, con-

trolling authority to the district court before it rules.

The Securities and Exchange Commission (SEC) led a civil

enforcement action against a defendant in the U.S. District

Court for the District of Massachusetts. After a 10-day trial,

the jury returned a unanimous verdict against the defendant.

Before the jury left the courtroom, the defendant’s counsel

asked to poll the jury, which the district court denied. The next

day, defense counsel informed the SEC that he believed the

court committed reversible error. The SEC immediately led an

emergency motion to recall the jurors, which the district court

denied. The following day, the defendant moved for a new trial

citing—for the rst time—Rule 48(c).

Rule 48(c) provides that “After a verdict is returned but

before the jury is discharged, the court must on a party’s

request, or may on its own, poll the jurors individually.” Under

Rule 48, if the poll reveals that the verdict lacks the requisite

number of supporting jurors, the district court may direct the

jury to deliberate further or may order a new trial.

In Sargent, at a hearing on the motion for new trial, the

district judge acknowledged that he had violated Rule 48(c),

and that he “simply did not know the rule.” The judge recused

himself from deciding the motion for new trial. The newly-

assigned judge granted a new trial, concluding that the defen-

dant’s invocation of Rule 48(c) for the rst time in its written

motion was timely. On appeal, the SEC did not challenge the

timing of the defendant’s invocation of Rule 48(c), and the

appellate court held that because the Seventh Amendment to

the U.S. Constitution protects the right to a civil jury trial, it is

per se reversible error to deny a jury poll under Rule 48(c).

This procedural ght might have been unnecessary if

counsel had cited Rule 48 when asking to poll the jury.

“Counsel should know every rule of trial procedure,” advises

Judge Barbara M. G. Lynn, Dallas, TX, a senior U.S. District

Judge and Co-Chair of the ABA Litigation Section’s 50th

Anniversary Task Force. “If you are asking a judge to do

something provided in the rules, always know and cite the

supporting rule,” she urges. Counsel can use an internet search

or a pocket copy of the procedural rules to quickly cite specic

rules to the court, adds Judge Lynn.

The district judge in Sargent who denied the jury poll “is

among the most experienced trial judges in the United States

[and] a hero in the federal judiciary,” Judge Lynn notes. He

wisely recused himself from deciding the motion for new trial

because he would not want to “grade his own paper,” she

explains.

But even the most experienced judges will welcome help

from counsel. “Judges are human,” remarks Michael S. LeBoff,

Newport Beach, CA, Co-Chair of the Section’s Young Lawyers

Leadership Program. “Both seasoned and younger lawyers

should be sure to educate the judge respectfully when the need

arises. Attorneys must know the procedural rules well so they

can cite them,” recommends LeBoff.

Section leaders urge practicality when deciding whether to

support or resist a procedural request from opposing counsel.

“The big picture and that it is a larger loss to need to appeal

and re-try a case,” cautions LeBoff. “And trial counsel gener-

ally does not want to give an opponent a black-and-white

issue on appeal,” points out Clifford F. Kinney Jr., Charleston,

WV, cochair of the Section’s Products Liability Litigation

Committee.

One useful practice is to prepare in advance a bank of short

“bench briefs” that can be readily tweaked and presented dur-

ing trial to address procedural rules and legal theories when

they arise, suggests Kinney. Bench briefs can be prepared

before trial, be just a few pages in length, and yet provide cita-

tions to controlling legal authority for the court to consider

before it rules. “Law rms should also consider mechanisms

to update attorneys on procedural changes as they occur, such

as hosting in-house continuing legal education events,” adds

Kinney.

Court’s Denial of Request to Poll

Jurors Is Reversible Error

By Michelle C. Hayes , Litigation News Contributing E ditor

FALL 2024 • VOL. 5 0 NO. 1

23 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE

Published in Lit igation News Volume 5 0, Number 1, Fall 2024. © 2 024 by the America n Bar Associati on. Reproduced wi th permission. A ll rights reserv ed. This informati on or any portion t hereof may not be copi ed or

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