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Right To Ask About “Core” Issues

The trial lawyer has the right to ask questions orally of the panel (FRCP 1.431), and to inquire into certain “core issues” which will have to be decided by the jury in order to evaluate the panel for potential challenges. Carver v. Neidermayer, 920 So2d 123 (Fla 4th DCA 2006).

This is true even if the questions are repetitive of what the judge has already asked. “Trial Court may not question prospective jurors on crucial areas and then prevent counsel from further exam under the guise that it would be repetitive. Miller v State, 785 So2d 662 (Fla 3rd DCA 2001); Campbell v State, 812 So2d 540 (Fla 4th DCA 2002). “Prospective jurors do not respond in the same manner to inquiry by judge as they do to questions by counsel.” Miller at 663.

Lawyers representing clients in litigation are entitled to ask, and receive truthful and complete responses to the relevant questions they pose to prospective jurors.” Roberts v. Tejada, 814 So2d 334 (Fla 2002) at 342. In order to preserve appellate record, lawyer’s questions must be asked “in terms which an average citizen not exposed to panoply of legal processes would be capable of understanding.” “Trial counsel must take special care during the interrogation process to explain in lay person’s terms” all the legal terms commonly used by attorneys. e.g. “litigation” Roberts at 344. Voir dire questions should be “straightforward and not reasonably susceptible to misinterpretation.” Taylor v Magana, 911 So2d 1263 (Fla 4th DCA 2004).

The trial lawyer has the right to ask questions about certain “core issues” that will be decided by the jury. Carver v. Niedermayer, 920 So2d 123 (Fla 4th DCA 2006). The trial court may not preclude a party from inquiry during voir dire into bias bearing on a matter that is at the heart of the party’s case. Ingrassia v. State, 902 So2d 357 (Fla 4th DCA 2005); See also, Lavado v State, 492 So2d 1322 (Fla 1986), adopting in its entirety the dissenting opinion of Judge Pearson in Lavado v State, 469 So2d 917 (Fla 3rd DCA 1985)

Insurance -“An attorney may question prospective jurors about any possible prejudice or bias they may have whether it be for or against insurance companies.” Purdy v. Gulf Breeze Enterprises, 403 So2d 1325 (Fla 1981) Court held it is permissible to question jurors about whether they felt there could be a relationship between their verdict and the amount of premiums they would have to pay. “How many of you believe that jury verdicts affect insurance premiums?” King v. Westlake, 572 SW 2d 841 (Ark 1978) cited with approval by Fla Sup Ct in Purdy. The impact of monetary awards in negligence cases upon insurance rates may be proper subject for exploration. Graham v. Waite, 257 NYS 2d 629 (NY Sup Ct 1965) cited with approval by Fla Sup Ct in Purdy.

Malpractice Insurance Crisis – Counsel was permitted to explore medical malpractice insurance crisis (Proposition 10) during voir dire. Kelman v. Motta, 564 So2d 147 (Fla 4th DCA 1990).

Feelings about Damages for Pain and Suffering and Mental Anguish – Trial counsel is entitled to question jurors about their attitudes and predilections concerning damages for pain and suffering and mental anguish. Carver v. Neidermayer, 920 So2d 123 (Fla 4th DCA 2006).

“Core Issues” or other Legal Issues in the case – “where a juror’s attitude about a particular legal doctrine (in the words of the trial court, “the law”) is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of the voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions.” Lavado v State, 469 So2d 917 (Fla 3rd DCA 1985) (Pearson, dissenting), adopted in its entirety by Florida Supreme Court in Lavado v State, 492 So2d 1322 (Fla 1986). See also, Carver v Neidermayer, 920 So2d 123 (Fla 4th DCA 2006).

President Bush’s comments about medical malpractice cases are fair game. “I want to talk to about a national issue that is of concern to millions here in Pennsylvania. Too many doctors, too many really fine healers are being forced out of practice because of the high cost of junk lawsuits. You cannot be pro-doctor and pro-patient and pro-plaintiff attorney at the same time.” See, Phillips v Hanna, 2004 WL 2582556 (Pa Comm Pl 2004)

Tort reform – Court erred in precluding counsel from inquiring whether prospective jurors had read or heard anything about tort reform or medical negligence cases. Barrett v. Peterson, 868 P2d 96 (Utah App 1993); Counsel is entitled to ask venire about “tort reform” and “frivolous lawsuits” and the “insurance crisis.” Anderson v. Dixson, 334 F Supp 928 (S D Miss 2004); Counsel permitted to ask whether anyone belonged to any tort reform group, whether they felt there were too many lawsuits, whether they felt doctors shouldn’t be sued, and whether they could return verdict for large damages if supported by evidence. Tighe v. Crosthwait, 665 So2d 1337 (Miss 1996)

Lawsuit Crisis – Court erred in refusing to allow attorneys to question venire panel about the alleged “lawsuit crisis” due to media coverage on issue at time of trial. Babcock v. Northwest Memorial Hospital, 767 SW 2d 705 (Texas 1989)

Hesitancy to award specific amount of damages – Plaintiff counsel permitted question prospective jurors as to whether they would hesitate to award sum as large as $600,000 if it was warranted by evidence. Atlantic Zayre v. Meeks, 390 SE 2d 398 (Ga App 1990); See also Scully v Otis Elevator, 275 NE 2d 905 (Ill App 1971) – Counsel permitted to inquire whether $600,000 was a figure the prospective jurors ‘could not possibly consider under any circumstances; whether the figure of $600,000 would ‘scare’ them; and whether a recovery of $600,000 would be ‘too much money for anybody.’ Feelings about large awards – See also Tighe, supra (large damages)