Posts filed under 'Juror Concealment'
A $900,000 plaintiff’s verdict in a rear-end collision case was reinstated last Friday by the Fifth District Court of Appeal even though two jurors had failed to disclose in voir dire that they had been injured and received medical treatment as a result of prior car accidents. During jury selection, plaintiff’s counsel asked THREE times whether anyone had been injured in a car accident, and specifically asked the entire panel “Have any of you ever been injured in any way, whether it be in a car accident, a collision, or a slip and fall?” Defense counsel’s voir dire was “very brief” and “did not mention the subject of prior accidents and injuries.” McCauslin v. O’Connor, 33 FLW D448b (Fla 5th DCA 2008).
Post-trial investigation by defense counsel revealed that two of the jurors had failed to disclose prior car accidents where they had been injured and received medical treatment. One of the jurors had even retained a lawyer and filed a claim just five years before the subject trial. Although there are other issues in the opinion, the appellate court suggested that because this was not a “highly participatory panel” and because plaintiff’s counsel’s questions were “broad,” that “prudent probing” by defense counsel “might well have resolved the problem entirely.” In other words, defense counsel should have reasked questions about prior accidents and injuries if that was an area of concern, and not relied on the panel’s responses (or lack of responses) to the questions posed by plaintiff’s counsel.
This is a troublesome case because it suggests trial counsel can’t rely on the juror’s responses to the questions of opposing counsel (and presumably the court), and that if an issue is of concern to you in your case, that you had better forego a “brief” voir dire and reask the questions that are of concern to you, even if those questions and areas have already been explored by others. Failure to do so could result in an appellate court concluding that you did not use “due diligence” in your voir dire.
February 12th, 2008
A jury in Miami awarded $3.9 million to the mother of a young woman who was killed by a drunk driver. After the verdict, the State Farm defense attorneys found out for the first time that the jury foreman’s father had been an alcoholic. They asked for a new trial alleging that the foreman had concealed this important information from them during jury selection. The trial court denied the request, and the appellate court affirmed the verdict holding that a key requirement to establishing prejudicial concealment of information by a juror during voir dire is a “clear, direct question” requiring a response by the venire member. “No such question was posed here.” So the verdict was upheld. Hood v. Valle, 33 FLW D235a (Fla 3rd DCA 1/16/08).
But it’s not that simple. In Hood, two panels of jurors were questioned separately during voir dire. Apparently, the first panel was seated in the courtroom while the second panel was being questioned. And although there were questions asked of the second panel concerning family members with substance abuse problems — to which two members of that panel responded that their fathers had been alcoholics — no such question had been asked of the first panel from which the foreperson ultimately emerged. The first panel had earlier been asked general questions concerning whether “anything about drinking” might affect their consideration of the case, or whether they had any “strong feelings about people who drink?” But, as noted by the Court, they had never been asked the ”clear, direct question” whether they had a parent who was or had been an alcoholic.
As a result of the inadequate questioning, the appellate court concluded that the first panel (sitting separately) had no reason to believe that they were to participate in the questioning of the second panel, or that they had some duty to supplement their own previous answers in response to later questioning. “No member of the first panel, including the subject juror, responded to questions addressed to the second panel.” Accordingly, the Court did not find any indication that the juror in question concealed information during the questioning, and therefore the jury’s verdict was affirmed.
January 17th, 2008
A defense verdict in a medical malpractice case was set aside due to a juror’s failure to disclose nine prior civil lawsuits and a criminal case in response to a written jury questionnaire. Dr. Sohail Delfani, shown smiling in this picture, is probably not very happy with his lawyers who apparently failed to do a proper background check on the venire panel during jury selection in his case. It would be really hard to miss NINE prior civil cases. Or — consider this –maybe the lawyers DID perform a background check on the juror and maybe they made a tactical decision to keep this information about the juror’s prior lawsuits to themselves to use in a motion for new trial in the event their client suffered an adverse verdict. Risky move, but there are rumors flying around these days that some law firms are employing these questionable tactics. We’ll never know. But if I were Dr. Delfani, I sure would want to know!
One thing the readers of this blog do know though, is that in 2007 it is now imperative that trial lawyers have their staff or investigators perform background checks on jurors during voir dire. There is a wealth of information readily available on the internet these days. It has been over five years since the Supreme Court of Florida approved performing background checks on jurors in Florida trials in the case of Roberts v. Tejada, 814 So.2d 334 (Fla 2002), and yet verdict after verdict is reversed on appeal or post-trial as a result of juror nondisclosure. In this case, it was some considerably outrageous concealment.
The 3rd DCA opinion itself is pretty unremarkable. There was no way the verdict could stand. The jury’s FOREMAN denied in his own handwriting on his written questionnaire that he had ever been involved in any other lawsuits or claims, even though apparently he had been involved in nine civil cases and a criminal one. See, Delfani v. Cromer, 32 FLW D2482 (Fla 3rd DCA - Oct 17, 2007).
November 2nd, 2007
Meet Erin - the blogging juror. Right now she is serving on a jury somewhere. Or at least she was last Tuesday and Wednesday. Erin has a blog, and she posted her thoughts about jury duty on her blog last week while she was on the jury: “yeah somebody actually put me on a jury. I guess I will probably be juror number eight, blowing everybody’s minds with charisma and excessive knowledge of forensic psychology. remember the movie? twelve angry men? god i hope i get to be the foreman of this stupid jury. MADAM FOREWOMAN OF THE JURY! i can’t wait to decide the lives and deaths of men tomorrow.” Erin refers to herself as the “oak park mastermind,” and you can read more of Erin’s thoughts about her civic service (”the stupid jury isn’t over yet”) by visiting her blog.
Erin’s blog post was sent to me last night by jury consultant, Amy Singer, who wrote “this blog post illustrates the necessity of online searching venire panelists for information.” Amy is obviously right, and this kind of stuff is happening more and more. In 2005 I started asking every panel member in every voir dire whether they have a web site, a blog, or a page on myspace, facebook or any other website. Back then not many jurors did. But that has been rapidly changing. Business week reported that in 2005 there were 40,000 new blogs popping up each day (Blogs Will Change Your Business). I’m sure the number has only increased since then. In my opinion, these questions are no longer optional in a 2007 voir dire. You can learn more about a juror from visiting their blog or their page on facebook than you can from a month’s worth of questions in the courtroom.
Vesna Jaksic, who does excellent investigative writing on jury issues for The National Law Journal, wrote a piece on blogging jurors this past March (A New Headache for Courts: Blogging Jurors). I was quoted at that time as follows: “Any lawyer who does not inquire during jury selection about a juror’s Internet presence — whether it be a Web site, a blog, an account on MySpace or an account on Match.com — hasn’t done their job.” I think Erin’s post about her jury duty proves my point. I can’t wait to see if she was the Foreperson.
October 7th, 2007
Two jurors in a personal injury case concealed their prior felony convictions during jury selection. Convicted felons are not qualified to serve as jurors in Florida pursuant to Fla. Stat. 40.013. In a lengthy well-reasoned opinion, Companioni v. City of Tampa, 32 FLWD840a (Fla 2DCA 2007), the Second District Court of Appeal reinstated a substantial jury verdict for the plaintiff because the defendant was not able to show any “actual prejudice” as a result of the felons serving on a civil jury.
Continue Reading April 1st, 2007
A lawyer who was selected to serve on a jury failed to disclose a prior personal injury claim during jury selection resulting in the reversal of a plaintiff’s verdict at the request of a co-defendant. In Pereda v. Parajon, 32 FLW D812a (Fla. 3DCA 2007), the Third District Court of Appeal found that the lawyer, who is a shareholder in a large firm, clearly concealed her personal injury history. The Court wrote that is was “difficult to imagine that she did not think the questions posed by counsel applied to her,” and that, as an officer of the court, she had a duty to disclose her prior automobile accident and claim.
The Court stopped short of determining whether the lawyer’s concealment was intentional, noting that “a juror’s nondisclosure need not be intentional to constitute concealment.” The Court reviewed the standard three prong test in determining whether juror concealment should result in a new trial. Citing Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002), the Court held that the complaining party must show: (1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party’s lack of due diligence. The Court found that all three prongs were clearly established in this case, and ordered a new trial.
March 28th, 2007
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A $900,000 plaintiff’s verdict in a rear-end collision case was reinstated last Friday by the Fifth District Court of Appeal even though two jurors had failed to disclose in voir dire that they had been injured and received medical treatment as a result of prior car accidents. During jury selection, plaintiff’s counsel asked THREE times whether anyone had been injured in a car accident, and specifically asked the entire panel “Have any of you ever been injured in any way, whether it be in a car accident, a collision, or a slip and fall?” Defense counsel’s voir dire was “very brief” and “did not mention the subject of prior accidents and injuries.” McCauslin v. O’Connor, 33 FLW D448b (Fla 5th DCA 2008).
