TO: Joint Procedure Committee
FROM: Andy Forward
DATE: March 17, 2010
RE: Rule 59, N.D.R.Civ.P., New Trials–Amendment of Judgments
At its January meeting, the Committee had questions on the phrase “arrived at by chance,” as it is used on line 18. Staff was instructed to research case law on juror misconduct and whether other states discuss juror misconduct and arriving at a verdict by chance in their rules.
Rule 606(b), N.D.R.Ev., uses the phrase “arrived at by chance.” Under the rule, a juror may testify about whether the verdict of the jury was arrived at by chance. See N.D.R.Ev. 606(b). The explanatory note to Rule 606 further explains:
Justice also requires disclosure whenever a verdict is arrived at by chance, including a “quotient” verdict, in which the jurors agree in advance to be bound. Although the view has been criticized, it is felt that reaching a verdict by chance is an extreme irregularity which replaces deliberation rather than being a part of it and, as such, should be disclosed.
There is case law mentioning the phrase “arrived at by chance” when discussing jury misconduct. See Minto Grain, LLC v. Tibert, 2009 ND 213, ¶ 35, 776 N.W.2d 549; Erickson v. Schwan, 453 N.W.2d 765, 770 (N.D. 1990). I was unable to find a North Dakota case that defined or discussed a verdict arrived at by chance.
Section 657(2) of the California Code of Civil Procedure is identical to N.D.R.Civ.P. 59(b)(2). The California Court of Appeals discussed “chance” in Chronakis v. Windsor, 18 Cal. Rptr. 2d 106, 109 (Cal. Ct. App. 1993):
Chance is the “hazard, risk, or the result or issue of uncertain and unknown conditions or forces.” (Dixon v. Pluns (1893) 98 Cal. 384, 387, 33 P. 268.) Verdicts reached by tossing a coin, drawing lots, or any other form of gambling are examples of improper chance verdicts. (7 Witkin Cal.Procedure (3d ed. 1985) Trial, § 361, p. 362.) “The more sophisticated device of the quotient verdict is equally improper: The jurors agree to be bound by an average of their views; each writes the amount he favors on a slip of paper; the sums are added and divided by 12, and the resulting ‘quotient’ pursuant to the prior agreement, is accepted as the verdict without further deliberation or consideration of its fairness.” (Ibid., emphasis in original.)
On the basis of the explanatory note to N.D.R.Ev. 606 and the above case, it appears a “verdict arrived at by chance” includes flipping a coin, drawing out of a hat, and a quotient verdict.
The amendments to Rule 59 are based on the federal form and style amendments. The existing rule and the federal rule are substantially different, except for subdivision (i) and federal rule subdivision (d). Form and style changes are proposed.
The proposed amendments to Rule 59 are attached along with a copy of the amendments to the federal rule and a copy of N.D.R.Ev. 606.