When Is Polling Permissible?

Posted: November 29, 2018

The Danger of Conducting Pretrial Polls of Potential Jurors

A Texas appellate court recently held that a pretrial poll designed to sway potential jurors crossed an ethical line. The court sanctioned the defense attorneys who conducted the poll with a whopping $133,415 fine. The court, exercising its inherent power to protect the right to a fair and impartial jury, found that counsel’s behavior in conducting the poll warranted the large sanction even though there was no specific local rule prohibiting polling.

ABA Section of Litigation leaders caution that lawyers can adequately protect themselves from sanction if they carefully craft questions to avoid the appearance of impropriety and limit the poll audience to avoid poisoning the jury pool.

The Poll at Issue

After a boy tragically died in a house fire, the boy’s family sued the manufacturer of a tubing product alleging that the tubing was defective and caused the house fire. Six weeks before the trial, the defense counsel hired a polling firm to randomly poll potential jurors without eliminating potential witnesses, parties, and court personnel. The polling firm ultimately selected 300 individuals from a database of 200,000 residents. During the survey, the pollsters asked pointed questions, including “about why the manufacturer… should not be held responsible.” Defense counsel was actively engaged in reviewing, revising, and approving the survey questions, including the pointed questions about liability.

Upon discovering the survey, the plaintiff sought sanctions against defense counsel for poisoning the jury pool. Initially and inexplicably, defense counsel denied knowing about the poll. Three days before trial, the defendant fired its counsel, the trial was delayed, and ultimately, the case settled. After a number of evidentiary hearings, the court sanctioned defense counsel, ordering reimbursement of expert witness and attorney fees.

Polling in Bad Faith

Pretrial polls of potential jurors are not per se prohibited. When conducted properly, polls can allow counsel to test arguments, theories of the case, and potential testimony before trial. In this instance, however, the trial court determined the defense attorney acted in bad faith by illegally attempting to influence the jury pool.
Cochairs of the Section of Litigation’s Ethics & Professionalism Committee advise lawyers to carefully administer pretrial polls and can avoid sanctions by:

  • Researching applicable law to determine if polls are permitted;
  • Determining whether the substance of the polls violate any applicable rules or prohibitions;
  • Carefully crafting polls to ensure that the polls do not poison the jury pool; and
  • Limiting the poll’s audience, being careful to avoid contact with parties, witnesses, and court personnel.

How to Respond to a Sanctions Motion

If you are the subject of a motion for sanctions due to the conduct of a pretrial poll, it is critical to conduct yourself appropriately. Creating a deferential response, as opposed to being dismissive, may help mitigate any penalties.

ABA Model Rules of Professional Conduct rules 3.3 and 3.4 require the utmost respect and candor to the court and opposing counsel. In this case, the defense attorney initially denied knowledge of the poll.  Once exposed, the denial created a large credibility problem for the attorney and led the court to impose sanctions. Counsel may have avoided the sanctions had they honestly and directly acknowledged the poll and done a better job explaining the rationale behind the poll.