June 03, 2014 11:19am PT by Eriq Gardner
Lisa Kudrow Demands New Trial After Jury Foreman Pens Bizarre Apology (Exclusive)
Just hours after Friends star Lisa Kudrow was ordered to pay $1.6 million to her former manager Scott Howard after a trial last February, the jury foreman Steve de Bode got on a red-eye flight to Atlanta. A former aircraftman in the British Royal Air Force, de Bode moved to the United States in 2009 and became an American citizen nine months before the trial started.
At the time, he was honored to be participating in the judicial system of his adopted home country. But as he sat on the flight, de Bode's sense of happiness turned to despair. So on that flight, he wrote Kudrow's lawyer a letter.
"Having now had some time to fully interpret the discussion within the jury room, I have come to realize that the majority of the jurors believed the Plaintiff's council, who in his opening statement portrayed Lisa Kudrow as 'the smartest person in the room' and then over the course of the trial proceeded to demean and 'play up' her Phoebe Buffay role throughout," he wrote.
De Bode continued with word that he was troubled by the "unwarranted, untrue and for lack of a better word, viscous [sic] attack of Lisa Kudrow's character" during closing arguments, a moment he remembers looking over at the actress and "feeling her despair for myself.
"I personally hold her in the highest regard for her bravery, honesty and determination in facing public scrutiny and media attention for what is and should have remained a private matter, in order to fight for what she, and now I, believe was right," the letter continued. "Please pass on my personal apology for the verdict to Lisa Kudrow and let her know that I firmly believe the majority decision was not correct."
Anyone who has seen 12 Angry Men knows that when jurors start deliberating after closing arguments, anything can happen. Minds are swayed, and the delivered verdict is not always what's expected to happen. But TV cameras are now allowed in courtrooms, and some individuals feel closer than ever to celebrities. This story is a postmodern twist on 12 Angry Men: What happens when the parties in the dispute begin trying to recount and interpret what happened in the jury room?
Here, Kudrow hopes that de Bode's confessional paves the way to a new trial. On June 10, the parties are scheduled back in court to debate.
The February trial featured a lot: Kudrow took the witness stand to explain why she had fired Howard in 2007. The former manager testified that his oral agreement with the actress entitled him to millions of dollars in post-termination commissions from the syndication of Friends. And industry veterans spoke as expert witnesses about what was customary in the entertainment industry.
According to de Bode, when the jury began deliberating, a straw poll was taken. Eight jurors initially favored Howard while four favored Kudrow.
But the makeup of that jury was a tad unusual. Besides the guy who had only become an American nine months earlier, there was "Juror #2" -- Ellen Aragon, former Los Angeles County Deputy District Attorney. The parties apparently didn't mind that a lawyer had made it into the jury, but according to de Bode, Aragon held enormous influence during deliberations. During the straw poll, Aragon allegedly said, "From my experience as a D.A., dealing with this sort of thing, Ms. Kudrow is liable for breach of contract, and I think she should pay."
Then there was the judge's instruction to the jury that in deciding the meaning of the terms of Kudrow's contract with Howard, they were to decide what the parties intended at the time the contract was created. Aragon allegedly told her peers that based on her legal experience, that was "irrelevant" and should be ignored.
Supposedly, the other jurors were well aware of the stakes of the case, having seen the video cameras and reporters in the courtroom. During a break, Juror #12 and Juror #6 are said to have told the jury foreman that the outcome of the case would establish a legal precedent. Juror #3 stated that the precedent would either be favorable to actors or favorable to personal managers. According to de Bode, Aragon spoke 60 percent of the time during deliberations and leaned on her professional expertise. Two jurors (not de Bode) who initially favored Kudrow changed their minds. The vote was thus 10-2, and in California, unanimity is not required (just 8 votes). Eventually, the $1.6 million verdict was announced, but not until after the jurors weighed future damages by considering whether Friends would continue in syndication beyond the 2017 expiration of the show's current contracts.
Now, Kudrow has seized on de Bode's revelations and with a new lawyer in tow, is demanding a new trial. "Juror No. 2's comments constituted improper communication of special knowledge, which led to five jurors ignoring the law as stated by the court," states a motion from attorney Timothy Lee, who has replaced Gerald Sauer in defending Kudrow against Howard's claims. "Juror No. 2's comments constituted misconduct."
Kudrow's side is also arguing for a new trial on the basis of one juror's failure to deliberate (Juror No. 5 says in a declaration that Juror No. 7 couldn't intelligibly convey his thoughts in English) and juror nullification due to the jury merely speculating about the future of Friends in syndication, contrary to instruction. All the allegations of juror misconduct are made in the service of a larger argument: that the terms of Kudrow's oral agreement with Howard were clear -- either side could walk away at any time -- and that even if post-termination commissions were customary in the entertainment industry, Kudrow wasn't aware of that practice when she hired Howard in 1991. Both the evidence given, as well as the jury's weighing of it, necessitates a do-over, Lee believes.
Obviously, Howard's side isn't accepting this version of events. "The juror from Great Britain who was desperate to be the foreman was more than a bit eccentric," Howard attorney Mark Baute tells The Hollywood Reporter. "His letter and his declaration show clearly that he was so biased and in love with Ms. Kudrow that he was actually misquoting the record to the other jurors. The jurors from our country appear to understand better the role of a juror, so they were polite to Mr. de Bode, but they ignored his inaccurate memory and they humored his biased approach, and they entered a correct verdict in favor of Scott Howard."
Three jurors have offered their own sworn statements rebutting the guilt-ridden jury foreman: Juror #4, a retired physics teacher; an alternative juror, who also was a lawyer; and Aragon herself. All state that the former D.A. never made statements like "based on my experience in the law" nor called for the irrelevancy of a jury instruction. And as for the future of Friends, this might not have been "pure" speculation.
According to Aragon, "Several other jurors (myself included) pointed out that the evidence of the continuing future value of the Friends' syndication contracts was well supported by a ten year history of large payments and hundreds of different licenses, which was likely to continue for years to come, and that it made no sense for anyone to believe (as juror no. 1 apparently was arguing) that the future value of a hit TV sitcom such as Friends would suddenly plummet to zero and that none of the hundreds of syndication contracts would be renewed or extended."
Aragon also states that many of the jurors didn't find Kudrow to be a "credible" witness, and that modifications that the actress had asked for during negotiations over her oral contract suggested Kudrow knew her manager was entitled to a 10-percent post-termination commission.
This is in direct contrast to de Bode's airplane confessional where he wrote his conclusion that such a deal point went unnegotiated and further, "that in terminating Mr. Howard when [Kudrow] did, rather than sooner as advised by her fellow artists, Lisa Kudrow showed great loyalty, compassion and humility in ensuring that Mr. Howard was beyond fully reimbursed for his role in her rise to fame and success."
Baute isn't impressed. "It's common for celebrities who are surrounded by sycophants to pretend that they don't have to honor a jury's verdict," he says. "Someone on 'Team Kudrow' needs to tell her what she needs to hear, not what she wants to hear. What she needs to hear is this: the verdict is righteous, it will be affirmed on appeal, you will pay Scott Howard 10 percen -- interest while the appeal is pending, and you will owe even more money at the end of the appellate process, and there is no way that any new lawyer is going to get you out of this. And if you do face a retrial, it will be 12-0 in Scott Howard's favor on the next trial, and the judgment will be for more money than this judgment."
UPDATE JUNE 10: The judge has denied the motion for a new trial.
Matthew Belloni contributed to this report.