September 11th, 2012
The Third District Court of Appeal recently held that the failure of trial counsel to perform background checks during trial on the members of the jury – as was suggested by the judge be done during this trial – may constitute a lack of due diligence, thereby precluding any right to a new trial based on later-discovered juror concealment after the jury’s verdict. Tricam Industries Inc v Coba, 2012 WL 3733642 (Fla 3rd DCA Aug. 29 2012).
In TriCam, the trial judge – during the trial – suggested that counsel run a background check on the jury before the jury started its deliberations while an alternate juror was still available. The plaintiff’s lawyer refused and said he was satisfied with the juror’s responses to his questions during jury selection. After the verdict and after the jury had been discharged, the plaintiff’s lawyer conducted an investigation of the jurors and learned one of the juror’s had failed to disclose his own litigation history involving a divorce, foreclosure actions, and collection cases. The lawyer filed a motion for a new trial based on the juror’s concealment of his litigation history, and the motion was denied.
The 3DCA wrote: “We acknowledge that the Florida Supreme Court held that trial counsel are not categorically required to run the juror’s litigation histories before the end of trial in order to satisfy the “due diligence” prong [of Roberts v Tejada, 814 So.2d 334 (Fla. 2002)]. Trial attorneys are, however, permitted to conduct such searches, just as trial courts are permitted to suggest them. Notably, the Florida Supreme Court, in Roberts, did not hold that trial courts cannot, in the appropriate circumstances, consider a trial counsel’s refusal to run a juror’s litigation history as one of several factors under a due diligence inquiry. Given this set of facts, we cannot say the trial court abused its discretion in denying the plaintiff’s motion for a new trial.”
The 3rd DCA also observed that, in its opinion, plaintiff’s counsel had failed to use due diligence in his questioning of the jury during voir dire. The Court wrote that “a reasonable attorney, exercising due diligence, should have asked follow up questions or have explained to the jurors that the trial court’s questions were not limited to personal injury suits,” and that “plaintiff’s counsel did not make any effort whatsoever to explain the types of legal actions that were encompassed in the trial court’s questions.” This despite the fact that the juror in question had denied ever being sued in response to a questionnaire and in answers to questions by the Court, and the lawyers had been specifically instructed by the Court not to ask “the same exact question that’s on the questionnaire.”
This opinion should be studied by all trial lawyers who want to win and hold-on to their hard-earned verdicts for two reasons: 1) It demonstrates the importance of asking precise easy-to-understand follow up questions during voir dire (even though the trial judge has asked similar questions and ordered counsel not to re-ask the same exact questions); and 2) It provides a potential way to protect the jury’s verdict from post-trial attack by asking the trial court at the beginning of the trial to request that all the lawyers perform their background checks on the jurors while alternate jurors are still available. Many trial judges are willing to provide counsel with a short recess at the beginning of the trial in order to perform their background checks if requested.
Entry Filed under: General Voir Dire