Attorneys for ex-USC coach argue implied jury bias tainted NCAA trial

LOS ANGELES -- Whether a juror in the Todd McNair NCAA defamation trial whose employer Latham & Watkins LLP previously filed briefs in the case was enough to show implied bias was the key question during a motion for new trial Friday.

Attorneys at Greene, Broillet & Wheeler LLP lost the trial last year after the jury found the NCAA did not defame the former assistant USC football coach when in a wide-ranging sanctions report it said McNair knew about payments from an aspiring agent to star running back Reggie Bush.

McNair's attorneys argued Friday in Los Angeles County Superior Court that because jury foreman Anthony Bruno voted against the sole defamation cause of action as part of the 9-3 defense verdict, his employment by Latham & Watkins was prejudicial.

At issue was Civil Code of Procedure 229B, which governs implied bias. Both sides agreed the controlling case was a 1994 4th District Court of Appeal decision in Terry but were split on whether that applied to the McNair matter. In Terry, the appellate court said the lower court was wrong when it denied a challenge to removing a juror -- a deputy district attorney -- whose office was prosecuting the very case he was sitting on. People v. Terry (1994) 30 Ca1.App.4th 97, 100-103.

Kosta Stojilkovic, a Wilkinson, Walsh + Eskovitz attorney for the NCAA, said implied bias did not fall under 229B and Terry concerned trial counsel.

"The basis Terry used simply doesn't apply when no one in the courtroom is from the entity where the juror works," said Stojilkovic.

The idea that a Latham attorney wasn't trial counsel did not matter, according to Stuart Esner, an appellate attorney at Esner, Chang & Boyer who handled arguments for the plaintiff. Bruce Broillet and Scott Carr of Greene Broillet litigated the case at trial.

"Counsel is confusing the purpose of 229. It's not only to prevent jurors who have actual bias from sitting on a jury, it is to guard against the perception of bias," said Esner.

Turning to Stojilkovic, Judge Frederick Shaller asked if the code not only applied to the lawyer but by extension to the firm in general.

Stojilkovic said Terry talked about a trial counsel, when the firm in question is a trial attorney, but not in the McNair case in which the firm in question dealt in pre-trial matters.

"I don't know how 229 could be limited to trial lawyers," said Esner. "229 simply says 'or having "stood within one year previous to the filing of the complaint in the action in the relation of attorney and client with either party or with the attorney for either party." The clear terms of this statute apply here to preclude juror number two from sitting on this jury," said Esner.

Shaller queried the juror prior to opening statements after the NCAA discovered Latham was involved but decided to keep him on the grounds he wasn't aware of the work Latham did in the case.

The court in Terry did not find the error prejudicial because the defendant removed the juror via peremptory challenge. Shaller asked the plaintiff why he should find prejudice. Esner responded by saying there were no peremptories available at the time.

The second grounds for the new trial motion was the plaintiff's claim the verdict was against the evidence presented in the trial because two reports by the committee charged with overseeing the investigation mischaracterized who placed a phone call between McNair and aspiring agent Lloyd Lake.

Lake told investigators it was McNair who called him late one night in 2006, and they talked about the payments, although phone records show it was Lake who called McNair.

McNair maintained during trial he didn't know about the payments or who Lake was.

Shaller asked if it even mattered who placed the call.

"Isn't a decision really a question of Mr. McNair's or Mr. Lake's credibility as to substance of conversation rather than who called whom or the reason for the call?" the judge asked.

The plaintiff disagreed, saying the jury did not determine there were false statements despite false details surrounding that phone call.

"They are focusing on two sentences of the report. ... Our argument was you can reason those two sentences as a good faith paraphrase of what Lloyd Lake said," Stojilkovic responded.

The judge took the arguments under submission.