Norfolk Southern Ry. Co. v. Bowles
In Norfolk Southern Ry. Co. v. Bowles, 261 Va. 21, 539 S.E.2d 727 (2001), counsel for appellant Norfolk Southern had requested and received the jury panel list forty-eight hours before the trial, pursuant to Code 8.01-353.
However, on the day of trial, several summoned jurors were unable to attend court due to inclement weather.
With only forty potential jurors present for the Bowles trial and an unrelated criminal matter, the court "combined" the jurors into a common "pool" from which juries were selected first for the criminal trial and, next, for the Bowles trial. Id. at 27, 539 S.E.2d at 730.
The jury ultimately chosen for the Bowles trial consisted of six persons not named on the jury panel list previously provided to Norfolk Southern.
In affirming the verdict, the Court instructed that the statutory scheme does not contemplate that a full and accurate jury panel list will always be available for counsel forty-eight hours before the trial of the case . . . . Code 8.01-353 and Code 8.01-355 recognize that unanticipated circumstances requiring alternative means of securing a jury panel will arise. Id. at 28, 539 S.E.2d at 731.
Thus, even assuming without deciding that the requirement of Code 8.01-353 regarding provision of the jury panel list is mandatory . . . the mandatory nature of that provision cannot extend to requiring that the jury panel list provided to counsel prior to trial be identical to the actual jury panel when circumstances require reconstitution of the jury panel. Id.