“Prudent Probing” During Jury Selection

February 12, 2008

Fifth District Court of AppealA $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’Conner, 985 So. 2d 558 (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.

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