• Home
  • News
  • Lawyer Could Face Jail for Voir Dire Question

Legal Ethics

Lawyer Could Face Jail for Voir Dire Question

Posted Jul 14, 2009 8:54 AM CST
By Debra Cassens Weiss

A federal magistrate has found patent lawyer John van Loben Sels in contempt of court and threatened him with a 48-hour jail sentence for a question he asked during voir dire.

Van Loben Sels asked potential jurors in a patent infringement suit whether they had "a problem with a company that puts its headquarters offshore on a Caribbean island in order to avoid paying U.S. taxes," the Recorder reports. He is a partner with Wang, Hartmann, Gibbs & Cauley of Mountain View, Calif.

U.S. Magistrate Judge Charles Everingham IV of Marshall, Texas, had prohibited Van Loben Sels and other lawyers for Beyond Innovation Technology Co., a defendant in a patent suit, from saying anything about the tax motivation for the Cayman Islands home of the plaintiff, O2 Micro.

Everingham said Van Loben Sels would not have to serve the sentence if he behaved for the rest of the case, according to the story. But he granted a mistrial and imposed other sanctions on Beyond Innovation Technology Co., known as BiTEK. It will have to foot the bill for new jury selection, will get half the voir dire time of its opponent and will get two peremptory challenges instead of four, according to the Recorder.

Van Loben Sels had defended his question, saying it was hypothetical and he didn't refer to O2 Micro by name.

Updated on July 17 to indicate that Everingham is a federal magistrate judge and to clarify the restrictions on comments by the lawyers.

Comments

1.

B. McLeod
Jul 14, 2009 10:19 AM CST

The new trial makes sense to me.  Making them pay the cost of jury selection makes sense to me.  Imposing unequal voir dire and challenges is playing with fire, and the court may come to rue that part of its decision.

2.

Mick
Jul 17, 2009 5:10 AM CST

I think the Judge struck the right balance.  According to the story, the Judge had issued a clear order and the attorney blatantly violated it.  If you dance with the devil in the pale moon light, there will be consequences.

3.

Seth Rosner
Jul 17, 2009 5:43 AM CST

I’m with B[rother] McLeod; new trial and jury selection cost to be borne by lawyer; voir dire and challenges penalizes the client. On appeal, I’d reverse that portion..

4.

Michael Duff
Jul 17, 2009 6:09 AM CST

Well, gee, I have a problem with it, and I loved the question.  I guess we were just getting a little too close to the bone now, weren’t we.

5.

sb
Jul 17, 2009 8:03 AM CST

McLeod & Rosner: I disagree; sanctions by the court for blatant misconduct often penalize the client, along with the attorney, plus the court is given a great deal of discretion in these matters.  I don’t think the judge’s decision would be disturbed on appeal at all, although it’s pretty close to the line.  It seems to me that this is the court saying “I’m not tossing you in jail or throwing you out of my courtroom, in exchange for these severe limitations.”

6.

James E. Barlow
Jul 17, 2009 8:15 AM CST

Is he going to be found guilty of contempt for telling the truth?

7.

CT
Jul 17, 2009 8:28 AM CST

Two errors in this article.  First, Everingham is a Magistrate Judge, not a district judge.  More important, the order prohibited introducing any evidence of the plaintiff’s overseas HQ and US taxes, not, more broadly, from “saying anything” about it.  And a question during voir dire isn’t evidence.

8.

eichler1
Jul 17, 2009 10:16 AM CST

I second Mr. Duff #4.

9.

somelawyer
Jul 17, 2009 11:56 AM CST

My two immediate thoughts were that this was not evidence, so the potential jurors needed to be dismissed, but why a mistrial? Trial testimony didn’t start; and that the procedural limitation of preremptory challenge is looks like an appellate issue now. Besides, lawyers will violate these limitations but get monetary sanctions, not even jail (even as a threat more than anything)

10.

BK
Jul 19, 2009 11:34 AM CST

I don’t think the (criminal) contempt citation could stand up on appeal. The civil remedies- mistrial, limiting voir dire (they actually get to ASK QUESTIONS in that district??) are a fine response though. His question served no purpose but to poison the well.

11.

trial savant
Jul 19, 2009 5:42 PM CST

Voir Dire is not evidence, but what was Van Loben Sels trying to accomplish.  If allowed to get answers to his hypothetical question, he would have merely identified the very jurors he would have wanted.  Furthermore, since he could not have introduced evidence of their tax motive, he would never have been able to show the very motive he hinted at.  Poor strategy, given the magistrate’s pre-trial ruling.

Add a Comment

We welcome your comments, but please adhere to our comment policy.

Commenting has expired on this post.