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Legal opinion answers question about mock trials

Local attorneys may conduct a mock trial with members of the community where a trial is being held as long as they use citizens who haven't been summoned for jury duty, according to a recent bar association legal opinion.

The opinion, issued by the San Diego County Bar Association's legal ethics committee, sought to answer a question that arose at one of the group's legal workshops.

"This opinion is significant because it provides some guidance in an area of critical importance to lawyers preparing for trial," said Wendy L. Patrick, co-chair of the ethics committee and a member of the San Diego County district attorney's office.

Attorneys routinely convene focus groups and conduct mock trials as part of their preparation for litigation.

Despite the common nature of mock trials, Dan Eaton -- principal author of the opinion -- couldn't find any guidelines on the subject and very little legal precedent during his research.

The rules of professional conduct state that, "A member connected with a case shall not communicate directly or indirectly with anyone the member knows to be a member of the venire from which the jury will be selected for trial of that case."

The specific query facing the ethics committee was whether an attorney could ethically assemble a mock jury from the community where the trial would be held after jury summonses were sent but before the trial date for which the jury would be empanelled.

"It was fascinating to me because no one else addressed the issue specifically," said Eaton, a partner at Seltzer Caplan McMahon & Vitek. "Frankly, I thought I'd find some opinion or ruling from a court that definitively answered this question.

"We felt they [the rules of professional conduct] needed to be clarified so people were not flying blind in what is an invaluable exercise in getting ready for trial."

Eaton said the ethics committee looked at how to define the word "venire" as it applied to the particular provision in the rules of professional conduct.

"Jury 'venire' means that group of individuals actually summoned to come to a given courthouse, as opposed to a particular courtroom, for jury service at the time trial is set to begin," Eaton wrote in his opinion. "Those individuals may not be solicited by a lawyer or his or her agent to serve as 'mock' jurors."

He went on to write that there's no ethical prohibition on an attorney contacting the rest of the community in which the trial is to be held as long as the members are asked whether they've been summoned for jury duty.

Attorneys -- or their agents -- not only should ask members of the community if they've been called for jury duty but whether they intend to serve on the particular date of the trial. In San Diego County, potential jurors have a two-week window from which to choose when they want to serve.

"We had to determine how much latitude there was in gathering a group representative of a jury, particularly when a summons had been issued to call people for jury service," Eaton said. "Does it mean an entire community was off limits or (part) of a community?"

Patrick said the ethics committee looked at the dictionary definition of "venire" and how it was defined in case law.

"I think (the opinion) will be welcome news to trial lawyers in San Diego and out of San Diego," she said, "because many lawyers look to other jurisdictions for guidance when the state bar hasn't written an opinion on the exact topic."

While its opinions don't carry the weight of the law, Eaton said the ethics committee tries to provide guidance so attorneys don't fall below the minimum standard of professional conduct.

"What these ethics opinions are designed to do is fill those kinds of gaps in understanding as to what the different types of rules actually mean," he said. "How do you satisfy the interests of Rule 5-320 [contact with jurors] while also satisfying the interests of trial lawyers who want to use this valuable tool?"

Attorneys Bob Gerber, a partner at Sheppard Mullin Richter & Hampton, and Luis Ventura, a sole practitioner, assisted Eaton in writing the opinion.

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