Q: You are a transactional attorney with litigation experience at a prominent law firm in Los Angeles. Attorneys don’t often get to serve on juries, usually one party wants them off. You were the presiding juror in this case. From a pure observational standpoint how was serving as a juror on the Todd McNair v. NCAA trial for you?
A: It was a learning experience. It was interesting to see two very, very good advocates put on a trial for three weeks. I never sat through more than a mock trial. I got to watch these attorneys in their craft. You see what their thought process was, how they went about presenting evidence. I’d say it was a once in a lifetime experience.
Q: Getting right to the trial, the jury came back unanimous as to Questions 1 and 2. Did all three statements that McNair claimed were defamatory make it through to Question 3 (meaning the 6/10/10 COI Report, 12/15/10 Emmert Statement, and 4/29/11 IAC Report)?
A: The Emmert statement didn’t make it, we viewed that as purely opinion. But the other two statements we viewed as statements of fact as they were factual findings that were made in the Committee on Infractions Report and affirmed in the Infractions Appeals Committee Report.
Q: And then from that point…?
We narrowed down the key evidence for defamation to the factual findings in pages 23 -27 of the COI Report. We read each statement to see if it was a statement of fact, if we needed to assess it. We identified six statements, which also had some redundancy, and narrowed those further to three principal statements of the COI which were the main focal points that we questioned for falsity: (1) McNair had knowledge that Reggie Bush (with Lloyd Lake/Michael Michaels) was likely engaged in NCAA violations, (2) the Committee’s description of what transpired in the Jan ‘06 phone call, and (3) that McNair provided false and misleading information about the call and the violations during his interviews.
Q: After the trial the jury complimented you on the work you did as the presiding juror. During deliberations, did you find yourself drawing much from your background as an attorney?
I tried to leave the legal expertise at the door. Initially when we got in the room to start deliberations, I wanted to hear from the group before I opened my mouth. When we started, I said that I just wanted to open it up for comments. At some point in the first day, we took a straw vote, anonymously first on a piece of paper. Day one it was 7-5 NCAA. As an attorney, burden was big for me, but there were jurors who were on top of it, who also kept coming back to burden. McNair’s burden to prove the statement of false.
Q: Ultimately of course you ruled in favor of the NCAA as to defamation. What were the biggest challenges to finding in favor of McNair?
A: The statement that caused the most issue for me was what happened in the [January 8, 2006] phone call. We asked ourselves what could we point to to show what was in that call. McNair said he didn’t remember. We read through the Lloyd Lake interview word for word to see if he was targeted by Lake. What we noticed was when Lake talked about McNair, it sounded almost incidental. You didn’t even get the impression that he was looking to go after McNair. So there was a phone call, a Lake interview, McNair’s testimony he didn’t remember, and that’s about it. We asked if there was a basis for the Committee’s finding and if there was anything we could point to to get over the 50% hump to conclude that McNair proved the statement false.
Q: As you said, it came down to burden of proof.
A: Yes, ultimately it came down to who had the burden. It is difficult to prove something didn’t happen. The other thing that helped me is that, while I know there were people who had ill intentions, I generally didn’t think so for the voting COI members. I viewed Eleanor Myers and Dennis Thomas as credible, and I believed they would speak up. We listed the evidence we had that showed the call took place as described, and on the other side, listed the evidence that showed it was not as described. McNair had his own testimony—mostly amounted to his stating that he didn’t remember the call.
In McNair’s favor, we also acknowledged that the enforcement staff’s questioning of Lake was not precise on the points concerning the call, but McNair did not offer much of a countervailing narrative of what happened on the call, nor much corroborating evidence to support his testimony generally. We thus had little to hang our hats on to believe that McNair proved the call did not take place as described by the COI.
The COI on the other hand had a reasonable amount of circumstantial evidence to support their description—e.g., Lake’s interview, Jones’ Interview, the prior encounters between Lake and McNair (including the picture taken on October 29, 2005), and just a sense of who had a greater motive to be untruthful about that call (i.e., at that point in time, we didn’t think Lake had a reason to lie about reaching out to McNair in Jan ‘06). We read McNair’s interviews and had concerns about credibility.
The fact that McNair did not get anybody, even Faizon Love, to testify, that also factored in. I don’t know if I would have made the same finding the COI made—I think the COI pushed the envelope more than I would have been comfortable if I were a voting member of the COI—but there was a basis for the COI’s finding and McNair had the burden of proof at this stage. There was an overwhelming sentiment he [McNair] knew more than he let on. But we also believe that he was put into an impossible situation, caught between a rock and a hard place. Reggie Bush is getting benefits, would he snitch on his star player? Also, as the trier of fact, I would have loved to have heard from Lake to judge his credibility. We were relying on the representations of committee members as to what they found credible. But we didn’t have the opportunity to judge his [Lake’s] credibility in the first instance. Plaintiff’s counsel stressed the importance of cross-examination. In my mind you could call McNair, but I needed something to be able to say I believe McNair over Lake. People wanted to hear from Lake. Even some of the members of the jury who were pro NCAA (including myself) said they wanted and were waiting for something to latch onto to get over the hump to find for McNair.
Q: The second day of deliberations, the jury asked why the Breach of Contract and Negligence claims were dropped. When did you realize the claims were dropped and how did that affect things for you?
A: I felt an immense sense of deflation coming over me when I learned we were only being instructed on defamation. Because in opening statement, the claims listed were negligence, breach of contract, and defamation. That is how the case was framed for me. So I walked into jury box thinking they [McNair] got there on breach of contract and negligence, but I wasn’t so sure as to false statements and defamation. Then we hear closing argument and were only instructed on defamation. So when we weren’t instructed, I was deflated, because I was not happy about where I thought this would all lead to, although I think I understand it tactically.
Going into deliberations on defamation there was an enormous sense of wanting to do something, but also a sense of integrity as to the defamation claim. We even postured the idea to somehow get damages to McNair even if a low amount to send a message to the NCAA. We peeked ahead to Question 4, assuming that we could get over the false statements, to ask if we could find malice, but people couldn’t, especially with the higher burden. We wanted to see if we could resolve the case in a way that would be just, but get all members comfortable with the verdict. Dissent was really bothered by the sense of injustice. I wanted to get there.
I think if those breach of contract and negligence claims were there, if there was an offramp to give him something, we could have given something. The sense I got, including from the members of the majority, is that the breach of contract and negligence claims might have gone his way because we were really looking for an offramp, but didn’t feel we had the legal tools to do what the case called for. Jurors asked if we could give him “just a little bit.” They asked, “Can we put a statement out there?” Which we did by speaking to the attorneys and press afterwards. We were troubled by the outcome. Obviously if it is the lesser claims you would not get as big of a pay day. But even if what the NCAA said was true, I could see how he was subjected to an unfair process in violation of the NCAA’s own bylaws.
Q: Speaking of violation of NCAA bylaws, and while I know you were not asked to evaluate this and weren’t given jury instructions as to breach of contract, you are a transactional attorney. Based on the evidence you saw, do you think USC would have a case for breach of contract against the NCAA?
A: Look this is what I know. There were bylaws stating that the Appeals Coordinator was not to participate in the deliberations. Deliberations means being in the room, talking and advocating. Rodney Uphoff was participating. He testified he was trying to influence them to make the right decision. This was also evident in the emails. The bylaws were clearly violated. As to the observing COI member [Roscoe Howard], the NCAA sent out a letter saying he would not be participating, but he did. For me, there was an agreement that they all had to abide by the bylaws, but the NCAA didn’t follow their own bylaws.
Q: Anything else you’d like to add about your experience?
One thing I want to make clear is that everyone in the jury room was professional. Everything I’ve said here is the sense I got from my observations, but I cannot speak for other jurors. The relationship between majority and dissent was cordial. People said their piece, there were no shy people in the room. I was happy to serve with them.