Wainwright Concurrence in:
Ford Motor Co. v. Castillo, No. 06-0875 (Tex. Apr. 3, 2009)(Johnson)
(defendant entitled to opportunity to conduct discovery on affirmative defenses to breach of settlement claim based on
improper juror conduct) (Ford given chance to show it was justified in backing out of settlement agreement because of
allegedly misleading message from jury)
FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, ET AL.; from Cameron County; 13th district (13-04-00638-CV, 200 SW3d
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court.
Justice Wainwright delivered a concurring opinion, in which Justice Medina joined. (pdf version)
I join the Court’s opinion and write separately to highlight an additional reason
supporting the decision and to emphasize the limited circumstances in which I believe
the Court’s opinion authorizes targeted discovery related to the actions of jurors. ...
The discovery in this case may show no such improper external influence, but under
the circumstances presented, I agree that the trial court should prudently and
cautiously tailor discovery to protect one of the important guarantors of our
constitutional liberties—the jury.
Ford Motor Co. v. Castillo, No. 06-0875 (Tex. 2009)(Wainwright, Concurring)
Argued February 5, 2008
Justice Wainwright, concurring, joined by Justice Medina.
I join the Court’s opinion and write separately to highlight an additional reason supporting the
decision and to emphasize the limited circumstances in which I believe the Court’s opinion
authorizes targeted discovery related to the actions of jurors.
In this case, Ford Motor Company and Castillo were prompted to settle their products liability
lawsuit by a note from the jury room to the trial judge asking: “What is the maximum amount that can
be awarded?” The judge and the parties subsequently learned that the note did not come from the
jury, but rather appears to have come from a juror, before Ford had been found liable in the jury’s
deliberations. The damages question was conditioned on a liability finding, and the jury would not
have had to discuss damages unless it found Ford liable. There is evidence that the presiding juror
either did not tell some jurors about the note or ignored objections of other jurors prior to sending it
to the judge. There are two potential reasons for the presiding juror’s action. One potential reason is
the juror had an agenda, possibly prompted or guided by outside agents, and attempted to influence
the result in the case improperly. The other is that a well-meaning juror sought to have her question
answered during deliberations, albeit without the permission of the rest of the jury. The concrete risk
that the first possibility motivated the question from the jury room is the reason the Court allows
discovery in this case.
The parties, their attorneys, and the trial court reasonably assumed that the note signed by the
presiding juror was not coming from a single juror, but rather the jury as a whole. Rule 285 of the
Texas Rules of Civil Procedure provides that the jury may communicate with the court verbally or
in writing through the presiding juror. However, neither Rule 285 nor other procedural rules set the
parameters for when questions may be sent by the jury to the judge. And the rules of procedure do
not require that all jurors be aware that a juror submitted a question to the court. The participants in
trials in Texas courts presume, and reasonably expect, that a note coming from the jury room
represents the concerns (if not the opinions) of at least a majority of jurors. See Tex. R. Civ. P. 285
(permitting communications between “the jury” and the court “either verbally or in writing”). Other
jurisdictions provide more guidance. See, e.g., Kevin F. O’Malley, Jay E. Grenig, & Hon. William C.
Lee, Federal Jury Practice and Instructions § 103.50 (6th ed. 2006) (“[I]f you need to communicate
with me during your deliberations, you may send a note to me through the marshal or bailiff, signed
by one or more jurors.”).
The Court should set parameters for when the jury may send questions to the judge about the
case during deliberations. The rules of procedure and the instructions to the jury should be
amended to specify that only the jury can send questions about the deliberations to the judge during
deliberations. At a minimum, the entire jury should know that a question about deliberations is being
sent to the judge. This will preclude an individual juror or a group of jurors from sending a question to
the judge under circumstances that suggest, as in this case, that the question was from the jury.
When improper outside influence is exerted on a juror, or a juror tries to manipulate the outcome
of a dispute, both parties are misled, and the integrity of the jury trial is subverted. The Texas
Constitution, the Government Code, the Rules of Civil Procedure, and our case law all recognize
that the parties to a civil case have a right to a fair trial, including an impartial and untainted jury.
Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 374 (Tex. 2000) (discussing “guarantees of
the right to a fair and impartial jury trial in Article I, Section 15 and Article V, Section 10 of the Texas
Constitution”); Tex. Const. art. I § 15 (“The right of trial by jury shall remain inviolate. The Legislature
shall pass such laws as may be needed to . . . maintain its purity and efficiency.”); Tex. Gov’t Code §
62.105(4) (disqualifying from jury service any person who “has a bias or prejudice in favor of or
against a party in the case”); Tex. R. Civ. P. 327(a) (providing for a new trial when jury misconduct
exists); see also Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749 (Tex. 2006) (recognizing the
constitutional right to a trial by a “fair and impartial jury”); id. at 768 (Medina, J., dissenting) (noting
that an “improperly impaneled jury is also akin to the denial of one”); Tex. Employers’ Ins. Ass’n v.
McCaslin, 317 S.W.2d 916, 919 (Tex. 1958) (noting that juror bias and misconduct “have never
been regarded lightly by the Texas courts”). The fact that the parties in this case attempted to settle
before the jury returned a verdict does not dilute their substantive right to a pure and efficient jury.
Just as this Court cannot allow to stand a favorable verdict obtained by one party due to possible
jury misconduct, e.g., Tex. Employers’ Ins. Ass’n, 317 S.W.2d at 918, it should not enforce a
settlement agreement if it is prompted by impermissible outside influence on a jury member. The
rule we pronounce today is necessary for the integrity of trial by jury and crucial for litigants to trust in
the twelve individuals empaneled as the triers of fact. Castillo would have been entitled to the same
limited discovery if he had entered into a meager settlement following the reading of a juror note,
potentially prompted by improper influence, asking, “What is the minimum amount of damages we
can award?” Both plaintiffs and defendants rely upon a jury system devoid of outside influence and
manipulation. See id. at 920 (noting that when a juror has been subjected to improper influence, it is
“often impossible for that juror to maintain an impartial attitude between the litigating parties. And
this is true whether the juror is prejudiced in favor of or against the party guilty of the improper act.”).
The discovery permitted by the Court in such situations is proper, but it is limited. Questions from
the jury room are not definite declarations of where the jury stands in its deliberations. In fact, many
jury instructions caution the jurors not to communicate how their votes stand numerically. See, e.g.,
10th Cir. Crim. Pattern Jury Instr. 1.43 (“I caution you, however, that with any message or question
you might send, you should not tell me any details of your deliberations or indicate how many of you
are voting in a particular way on any issue.”); accord 8th Cir. Civ. Jury Instr. 3.06; O’Malley, § 103.50
(similarly warning jurors not to disclose votes in written questions). If the parties merely misread an
implied message from a jury note, settle based on that note, and later discover that the jury may
have come out the other way had it been allowed to reach a verdict, there is no automatic claim for
recision of the settlement contract on mutual mistake grounds, and it remains difficult for the doors
to the jury room to be opened for discovery of impropriety or external influence. But when there is
specific evidence to suggest that a juror may have been improperly influenced by outside agents,
the integrity of the jury trial process requires that the adversely affected parties be entitled to
targeted formal discovery to investigate the alleged misconduct. The discovery in this case may
show no such improper external influence, but under the circumstances presented, I agree that the
trial court should prudently and cautiously tailor discovery to protect one of the important guarantors
of our constitutional liberties—the jury.
OPINION DELIVERED: April 3, 2009
 Texas Rule of Civil Procedure 285 provides:
The jury may communicate with the court by making their wish known to the officer in charge, who shall
inform the court, and they may then in open court, and through their presiding juror, communicate with the
court, either verbally or in writing. If the communication is to request further instructions, Rule 286 [relating to
the procedure for providing the jury with further instruction “touching any matter of law”] shall be followed.
 Accord 1st Cir. Pattern Crim. Jury Instr. (1997); 7th Cir. Fed. Jury Instr.—Civil 1.33 (2008); 8th Cir. Civ.
Jury Instr. 3.06 (2005); 9th Cir. Civ. Jury Instr. 3.2 (2007) (all providing instructions for jury notes, requiring
that each note be signed by one or more jurors); see also 10th Cir. Crim. Pattern Jury Instr. 1.43 (2005) (“If
you [the jury] want to communicate with me at any time during your deliberations, please write down your
message or question and give it to . . . [the bailiff] . . . , who will bring it to my attention.”).
 This is not to suggest that individual jurors cannot communicate with the judge about other important
matters, such as a single parent advising the judge that she received a call from a school nurse to tell her
that her daughter is very sick.