You might remember FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, ET AL., No. 06-0875, or at least the unusual request for discovery about a juror's potential misconduct. The juror had sent a note asking "What is the maximum amount that can be awarded?" that, because of the circumstances, Ford later believed was part of a scheme to obtain a larger settlement from Ford.

That discovery yielded evidence that Ford then used as the foundation of a fraud claim to rescind its settlement agreement. The trial court ruled in its favor. The court of appeals reversed, concluding that the evidence on some elements of fraud was legally insufficient. The Texas Supreme Court disagreed.¹

On the first element of fraud, the question is whether a jury question is a statement of fact capable of being false. The Court held that the jury question was, implicitly, a representation about a fact in the world, namely, that the jury was actually deliberating about damages (which some evidence here suggested was not true). "Because the note implies
statements that are false, we conclude that some evidence exists" to constitute the first element of a fraud claim.

On the question of whether the note was sent with the coordination of (and therefore attributable in some way to) the plaintiff's counsel, the Court noted that the evidence here was circumstantial — but that evidence of fraud is often, by its nature, circumstantial. "[C]ircumstantial evidence must be evaluated in light of all the known circumstances, not merely in isolation." Here, because of curious statements made by those counsel during the ongoing negotiations — which keyed the amount of settlement demanded to an oddly specific prediction about a note that might come from the jury — the Texas Supreme Court found the evidence of this element legally sufficient.

Court's reaction is visible in, among other places, the footnotes, the first two
of which observe that the judge and a former state representative are
now serving prison sentences related to schemes to sell favorable rulings.