Lisa Kudrow, of TV Friends fame, lost the case filed against her by former manager Scott Howard. In February a jury awarded Howard $1.6 million.
Why am I sharing this six months later? Because this case raises questions about jury selection, foreman selection, juror behavior, personal bias when serving on a jury, following judge’s instructions, and more. Is it time to re-examine trial by jury?
An important plot twist turned Howard v. Kudrow, an otherwise run of the mill trial, into a comedy of errors: the jury foreman developed juror’s remorse. But instead of keeping his mouth shut, he drafted and sent a letter of apology to the actress via her attorney. Ruh oh.
What? Yes. He single handedly decided to upset the apple cart that was a verdict decided by a jury of 12. Had someone forgotten to explain that the purpose of deliberating is to conclude the case decisively, by majority vote? American courtrooms are not playgrounds where you get to say, “Sorry, do-over. Please, c’mon lads, I really, really, really want to change my mind.” [You say that in American appellate courtrooms.]
You see, Mr. Jury Foreman waited until after handing in the verdict to “fully interpret what was said in the jury room.” Now I want to shout out to Mr. Jury Foreman, What, are you new?!
But I know the answer. Yes, he is new. He’d only been a citizen of the U.S. for nine months before serving. How the heck did he get to be foreman? His infatuation with the defendant, Lisa Kudrow, enabled him with super powers of persuasion. (Or maybe it was his British accent. Americans can’t resist the accent.) He even beat out a former deputy district attorney who was serving on the jury.
Then there’s Juror #7 who “couldn’t intelligibly convey his thoughts in English.” Oh, brother. [Hand smack to forehead.]
And Juror #2 who told her fellow jurors to disregard the judge’s instructions, what His Honor had said was “irrelevant” in her
humble opinion. (She’s the former deputy D.A. Emphasis on former.)
Can you say circus frenzy? Read the Hollywood Reporter’s coverage, then let us know if you think the conundrums of this case are due strictly to the celebrity of the defendant? Or are these kinds of boo-boos happening in average citizen’s jury trials?
Just hours after Friends star Lisa Kudrow was ordered to pay $1.6 million to her former manager Scott Howard after a trial last February, the jury foreman Steve de Bode got on a red-eye flight to Atlanta. A former aircraftman in the British Royal Air Force, de Bode moved to the United States in 2009 and became an American citizen nine months before the trial started.
At the time, he was honored to be participating in the judicial system of his adopted home country. But as he sat on the flight, de Bode’s sense of happiness turned to despair. So on that flight, he wrote Kudrow’s lawyer a letter.
“Having now had some time to fully interpret the discussion within the jury room, I have come to realize that the majority of the jurors believed the Plaintiff’s council, who in his opening statement portrayed Lisa Kudrow as ‘the smartest person in the room’ and then over the course of the trial proceeded to demean and ‘play up’ her Phoebe Buffay role throughout,” he wrote.
De Bode continued with word that he was troubled by the “unwarranted, untrue and for lack of a better word, viscous [sic]attack of Lisa Kudrow’s character” during closing arguments, a moment he remembers looking over at the actress and “feeling her despair for myself.
“I personally hold her in the highest regard for her bravery, honesty and determination in facing public scrutiny and media attention for what is and should have remained a private matter, in order to fight for what she, and now I, believe was right,” the letter continued. “Please pass on my personal apology for the verdict to Lisa Kudrow and let her know that I firmly believe the majority decision was not correct.”
Anyone who has seen 12 Angry Men knows that when jurors start deliberating after closing arguments, anything can happen. Minds are swayed, and the delivered verdict is not always what’s expected to happen. But TV cameras are now allowed in courtrooms, and some individuals feel closer than ever to celebrities. This story is a postmodern twist on 12 Angry Men: What happens when the parties in the dispute begin trying to recount and interpret what happened in the jury room?
The February trial featured a lot: Kudrow took the witness stand to explain why she had fired Howard in 2007. The former manager testified that his oral agreement with the actress entitled him to millions of dollars in post-termination commissions from the syndication of Friends. And industry veterans spoke as expert witnesses about what was customary in the entertainment industry.
According to de Bode, when the jury began deliberating, a straw poll was taken. Eight jurors initially favored Howard while four favored Kudrow.
But the makeup of that jury was a tad unusual. Besides the guy who had only become an American nine months earlier, there was “Juror #2” — Ellen Aragon, former Los Angeles County Deputy District Attorney. The parties apparently didn’t mind that a lawyer had made it into the jury, but according to de Bode, Aragon held enormous influence during deliberations. During the straw poll, Aragon allegedly said, “From my experience as a D.A., dealing with this sort of thing, Ms. Kudrow is liable for breach of contract, and I think she should pay.”
Then there was the judge’s instruction to the jury that in deciding the meaning of the terms of Kudrow’s contract with Howard, they were to decide what the parties intended at the time the contract was created. Aragon allegedly told her peers that based on her legal experience, that was “irrelevant” and should be ignored.
Supposedly, the other jurors were well aware of the stakes of the case, having seen the video cameras and reporters in the courtroom. During a break, Juror #12 and Juror #6 are said to have told the jury foreman that the outcome of the case would establish a legal precedent. Juror #3 stated that the precedent would either be favorable to actors or favorable to personal managers. According to de Bode, Aragon spoke 60 percent of the time during deliberations and leaned on her professional expertise. Two jurors (not de Bode) who initially favored Kudrow changed their minds. The vote was thus 10-2, and in California, unanimity is not required (just 8 votes). Eventually, the $1.6 million verdict was announced, but not until after the jurors weighed future damages by considering whether Friends would continue in syndication beyond the 2017 expiration of the show’s current contracts.
Now, Kudrow has seized on de Bode’s revelations and with a new lawyer in tow, is demanding a new trial. “Juror No. 2’s comments constituted improper communication of special knowledge, which led to five jurors ignoring the law as stated by the court,” states a motion from attorney Timothy Lee, who has replaced Gerald Sauer in defending Kudrow against Howard’s claims. “Juror No. 2’s comments constituted misconduct.”
Kudrow’s side is also arguing for a new trial on the basis of one juror’s failure to deliberate (Juror No. 5 says in a declaration that Juror No. 7 couldn’t intelligibly convey his thoughts in English) and juror nullification due to the jury merely speculating about the future of Friends in syndication, contrary to instruction. All the allegations of juror misconduct are made in the service of a larger argument: that the terms of Kudrow’s oral agreement with Howard were clear — either side could walk away at any time — and that even if post-termination commissions were customary in the entertainment industry, Kudrow wasn’t aware of that practice when she hired Howard in 1991. Both the evidence given, as well as the jury’s weighing of it, necessitates a do-over, Lee believes.
Obviously, Howard’s side isn’t accepting this version of events. “The juror from Great Britain who was desperate to be the foreman was more than a bit eccentric,” Howard attorney Mark Baute tells The Hollywood Reporter. “His letter and his declaration show clearly that he was so biased and in love with Ms. Kudrow that he was actually misquoting the record to the other jurors. The jurors from our country appear to understand better the role of a juror, so they were polite to Mr. de Bode, but they ignored his inaccurate memory and they humored his biased approach, and they entered a correct verdict in favor of Scott Howard.”
Continue reading http://www.hollywoodreporter.com/thr-esq/lisa-kudrow-demands-new-trial
Doesn’t this story make you shake your head and wonder, as did Abbott and Costello, Who’s on first . . .in this jury trial?
by T.M. Burroughs
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