Schmidt, Sethi & Akmajian Blog

Trials—Ex Parte Communication with Juror by Bailiff

Posted by Ted A. Schmidt | Feb 12, 2016 | 0 Comments

American Power Products, Inc. v. CSK Auto, Inc., 731 Ariz. Adv. Rep. 28 (February 5, 2016)  (J. Brutinel)


After a twelve day trial on a breach of contract case with 24 witnesses and 164 exhibits (4,000+ pages), a juror asked the bailiff how long deliberations usually last. Without checking with anyone first the bailiff responded “an hour or two should be plenty.”  The trial court denied the plaintiffs' motion for a new trial based upon the communication refusing to hold an evidentiary hearing. The Arizona Court of Appeals ruled an evidentiary hearing was required. The Arizona Supreme Court affirmed the trial court and reversed and remanded the court of appeals.

It is uncontroverted that  Ariz. R. Civ. P. 39(e), (g) (communications by bailiff  to deliberating jury impermissible except to ask if they have a verdict) was violated by this ex  parte communication. However, because there was no dispute as to what was said to the jurors there was no need for an evidentiary hearing.  It would be impermissible under Arizona Rule of Evidence 606(b) to hold such a hearing for the purpose of asking jurors “about any incident that occurred during the jury's deliberations; the effect of anything on [a ] juror's vote or any juror's mental process.”

Accordingly, in order to determine if the plaintiff was prejudiced, the court must determine whether the communication would likely prejudice an hypothetical average juror. In so doing the court is to  consider factors such as “whether the communication related to the evidence presented, the applicable law, or the ultimate issue in the case, or whether it clearly interfered with the jury's decision-making process.” Here, the communication was not “objectively prejudicial” in that it did not favor one party over another nor address any substantive or evidentiary issues in the case.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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