May et al v. BHP Billiton Petroleum (Fayetteville) LLC

Filing 175

ORDER: The Court is attaching its current working drafts of (1) the key parts of the voir dire areas, (2) the preliminary instructions, (3) the final instructions, and (4) the verdicts. Please file any objections to the preliminary instructions by no on on Friday, April 1. There's no need to comment or object yet on the final instructions or the verdicts. The Court will instruct about depositions when it comes up during trial. Counsel should consider a counter-proposal on opening statements. Twenty minutes a side Monday afternoon to sketch the whole; then five minutes a side, first thing every morning each day thereafter, to explain the witnesses and proof expected that day. If not, we'll have thirty minute openings on Monday previ ously ordered. Counsel should also consider letting the jurors ask questions. This proposal is subject to unanimous consent. Signed by Judge D. P. Marshall Jr. on 3/31/2016. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
KENNETH JOE MAY; MARY ANN MAY;
STEVE SNOWDEN; and CINDY SNOWDEN
v.

PLAINTIFFS

No. 4:13-cv-494-DPM

BHP BILLITON PETROLEUM
(Fayetteville) LLC

DEFENDANT

Voir Dire Outline
A.

Preliminaries
1.

Thank you for serving. Echo “Called to Serve.”

2.

A morning of speaking the truth, voir dire [vor-dyer]
= twelve people good and true.

3.

In trial all week.

4.

Urgent or extraordinary obligations this week?

5.

Rules of the Road:
•

Can I be completely fair and impartial?

•

Can I decide the case based solely on the
evidence seen and heard in this courtroom, the
law as explained by the Court, and my
common sense?

•

Questions and answers. You = you and your
immediate family.

•

Raise your hand, state your name, and answer.

•

Eighteen, but all — Notepads.

•

Questionnaires. Summary. Confirm lawyers
have.

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•

Case Sketch — Not Evidence, Just Background.
Steve and Cindy Snowden own minerals
in White County, Arkansas.

Kenneth and

Mary Ann May do too. All their minerals are
within the Fayetteville Shale, which contains
natural gas. Mr. and Mrs. Snowden and Mr.
and Mrs. May leased the rights to develop their
minerals through three separate oil and gas
leases. BHP Billiton Petroleum (Fayetteville)
LLC holds an interest in each of these leases.
Arkansas law implies a promise in each lease
called the covenant of reasonable development.
This promise requires BHP to reasonably and
prudently develop the minerals for the mutual
benefit of both parties—the mineral owners
and BHP. There is one well producing natural
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gas in paying quantities related to each lease.
BHP operates these three wells. And the
Snowdens and the Mays are getting some
royalties from these wells. The mineral owners
contend, however, that BHP should have
drilled more wells on each lease. The Mays and
the Snowdens say that BHP has broken the
promise to reasonably and prudently develop
their minerals. BHP responds that, considering
all the circumstances, it has developed all these
leases appropriately. The company says it has
kept its promise and been a reasonable and
prudent operator.

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•

Introductions
—

Plaintiffs Kenneth Joe May, Mary Ann
May,

Steve

Snowden,

and

Cindy

Snowden. Lawyers = Richard Mays, and
Melanie Ann Beltran. Richard Mays Law
Firm?
—

Defendants BHP Billiton Petroleum
(Fayetteville)

LLC,

Corporate

representative Steve Mahaney. Lawyers =
Steven Quattlebaum, Quattleaum Grooms
& Tull, Julie Greathouse, and PPGMR?

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Witnesses
James Williams

David Henderson

George Hite

Robert McGowan

Rohan Goudge

Greg McCain

Spencer Clearley

Jeff O’Bryant

Joe Chandler

Cheryl White
•

Know Parties? Lawyers? Witnesses?

B.

Call Eighteen, But All — Notepads

C.

General Background Questions
•

Legal training or experience?

•

Know other panel members?

•

Prior jury service?

•

Prior court experience? Sued or been sued?
Witness?

•

Prior or current litigation involving BHP?

•

Religious convictions against sitting in
judgment?
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•

Negative feelings about civil justice system?
—
—

D.

Too many lawsuits?
If sue, then win?

Case-Specific Questions
Remember, answer about you and your immediate
family
•

Any involvement or experience with mineral
rights? Family?

•

Leased mineral rights? Any discussions or
negotiations about leasing rights? Drilling?
Exploration? Family?

•

Ever received royalties from mineral rights?
Rental payments? Family?

•

Mineral lease with BHP? Chesapeake?
SEECO? XTO? Any company?

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•

Ever sued, or been sued by, BHP? By any oil &
gas company? Result?

•

Mineral rights dispute of any kind?

•

Opinions about the oil and gas industry?

•

Do you have strong opinions about hydraulic
fracturing, also called fracking? Positive or
negative?

•

Read or heard news about natural gas
production in Arkansas? Fayetteville Shale?
Anything about BHP specifically?

•

Worked for an oil & gas company? Worked in
the oil & gas industry in any way?

•

Do you have training in Geology? Mining?
Engineering?

Finance?

Oil

and

gas

development? Land management? Statistics?

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E.

Juror Question Time

F.

The Unasked Question?

G.

Lawyer’s thoughts on Follow-Up Questions. F.R.C.P.
47(a)

H.

Allow

lawyer’s

follow-up.

Quattlebaum (10 minutes).

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Mays

(10

minutes).

I.

Strikes for Cause. FRCP 47(c).1

Rule 47. Selecting Jurors
(a) EXAMINING JURORS. The court may permit the parties
or their attorneys to examine prospective jurors or may itself
do so. If the court examines the jurors, it must permit the
parties or their attorneys to make any further inquiry it
considers proper, or must itself ask any of their additional
questions it considers proper.
(b) PEREMPTORY CHALLENGES. The court must allow the
number of peremptory challenges provided by 28 U.S.C.
§ 1870.
(c) EXCUSING A JUROR. During trial or deliberation, the
court may excuse a juror for good cause.
1

Allen v. Brown Clinic, PLLP, 531 F.3d 568, 572 (8th Cir. 2008)
“To challenge a juror for cause, a party must show actual
partiality growing out of the nature and circumstances of the
case. A district court is required to strike for cause any juror
who is shown to lack impartiality or the appearance of
impartiality, and, absent abuse of discretion, we will not
interfere with the district court’s determination of juror
qualifications. The district court is given broad discretion in
determining whether to strike jurors for cause because it is in
the best position to assess the demeanor and credibility of the
prospective jurors.” (quotations omitted)
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J.

Peremptory Challenges. FRCP 47(b).2
•

Three each side

28 U.S.C. § 1870
“In civil cases, each party shall be entitled to three
peremptory challenges. Several defendants or several plaintiffs
may be considered as a single party for the purposes of making
challenges, or the court may allow additional peremptory
challenges and permit them to be exercised separately or
jointly.
All challenges for cause or favor, whether to the array or
panel or to individual jurors, shall be determined by the
Court.”

2

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•

Challenging Strikes. Race or Gender? Of Batson.3

•

Seat and Swear Jury
“You and each of you do solemnly swear or affirm to well
and truly try the matter now on trial and render a true
verdict according to the law and the evidence, so help you
God.”

•

Thanks and Goodbye venire [ven–ire–e]

Three-part test.
“In order to succeed on a Batson challenge, a party must
satisfy a three-part test. First, an objecting party must make a
prima facie showing that a peremptory challenge was made on
the basis of race. Second, if a prima facie showing has been
made, the party striking the juror must offer a race-neutral
basis for striking the juror in question. Third, the trial court
must determine whether the objecting party has proven the
ultimate question of purposeful discrimination.” Cook v. City of
Bella Villa, 582 F.3d 840, 854 (8th Cir. 2009) (quotations
omitted).

3

“We . . . strongly urge the district courts to make on-therecord rulings articulating the reasoning underlying a
determination on a Batson objection.” Ibid. (quotation omitted).
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