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Shankman v. State7/13/2005
1914). As Pushcart explained, in order to hold that the finding of a jury is a quotient verdict it must also appear that there was a positive prior agreement to abide by the result of this process, and even if there may have been such an agreement, if the jury subsequently refused to abide by it, and find a verdict greater or less than the quotient, it would not be error.
[Ibid.]
The Appellate Division has adhered consistently to Pushcart's statement of the rule. See Gray v. Pope, 236 N.J. Super. 206 (App. Div. 1989); Cavallo v. Hughes, 235 N.J. Super. 393 (App. Div. 1989); Cerf v. Smolderer, 39 N.J. Super. 222 (Law. Div.), certif. denied, 22 N.J. 221 (1956). The only significant permutation in the law occurred in Cavallo, supra, when the Appellate Division recommended that whenever the issue of a "quotient verdict" arises "the trial judge [should] specifically inquire whether there was a prior agreement." 235 N.J. Super. at 398 n.2 (holding nonetheless that trial court's failure to do so was not plain error).
We note with approval that development because it taught the trial courts not to begin, and end, an inquiry into an allegation that an illegal quotient verdict occurred with a myopic focus on whether there exists any evidence that the jurors agreed to average their views. Proof of such averaging is, alone, insufficient to have unearthed an illegal quotient verdict.
The objectionable aspect of such agreements is that jurors who participate in quotient verdicts "agree, without knowing in advance what the quotient will be, to be bound by it and to foreclose the opportunity for further discussion and for comparison and evaluation of individual juror's positions, . . . [and such verdicts are thus arrived at] through a process of chance or gambling and are not founded upon discussion, deliberation, reasoning, and collective judgment in which each juror has an opportunity for individual participation."
[Cavallo, supra, 235 N.J. at 398 (quoting Quotient Verdicts, supra, 8 A.L.R.3d at 340).]
In Cavallo, the Appellate Division recognized that the trial court already had a sufficient explanation of what had occurred during deliberations enabling both the trial court and the reviewing court to be satisfied that, after engaging in an exercise of averaging, the jury nonetheless confirmed its approval of the averaged amount "by the required number that the final percentage of fault represent its collective appraisal of the issue to be decided." Supra, 235 N.J. Super. at 398. We agree with the Appellate Division in Cavallo that that jury's verdict did not need to be set aside as an illegal quotient verdict. And, we agree with the added measure of instruction that Cavallo offered -- prompt follow-up questioning should be requested by counsel and provided by the trial court when there may be reason to question whether the verdict is the product of a prior agreement to be bound, instead of being the product of the jury's collective appraisal. Id. at 398 n.2. With that fillip added by Cavallo, our case law requires no further adjustment, only application.
C.
The Appellate Division reversed the trial court below, essentially because the court did not follow the primer that had been provided to the trial courts by Cavallo. We agree with the panel that reversal was necessary.
The exchange that took place between the trial court and Juror 1 and the Foreperson contained more than a mere wisp of a suggestion of averaging. The jurors readily revealed that averaging was used to derive the liability percentages. Although that is not problematic in and of itself, what is problematic is that the exchange permitted the
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