Procedure in Civil Cases

The procedure for jury selection in civil cases in state court in Florida is governed largely by Florida Rule of Civil Procedure 1.431. This rule sets forth the broad guidelines the court and the attorneys must follow during voir dire of the panel. The rule has nine subdivisions:

a) Questionnaires: With all of the hoopla over the use of juror questionnaires these days, many attorneys are surprised to find that the Rules of Civil Procedure only provide for the discretionary use during voir dire of one type of questionnaire “in the form approved by the Supreme Court.” Thus, unless all parties in a civil case stipulate to the use of a non-standard form, it would seem that the use of a non-approved questionnaire during voir dire would probably be error. The form questionnaire approved for use by the Supreme Court is brief but does contain some valuable information about prospective jurors. See Fla. R. Civ. P. – Form 1.983.

b) Examination by the Parties: The rule provides that the parties have the right to orally examine the jurors, and that the court may examine the jurors, but the right of the parties to conduct a “reasonable examination” of each juror shall be preserved. Many judges have been reversed for needlessly interfering with and limiting the voir dire examination of the attorneys. (See “The Role of the Judge” herein). Unfortunately, case law demonstrates that some judges have limited interest in the jury selection process, and have a mistaken mindset that the trial hasn’t begun until the jury has been selected. Thus, they are in a rush to select a jury and are frequently reversed due to jury selection errors.

The rule provides that the order in which the parties may examine each juror shall be determined by the court. Traditionally, the plaintiff goes first in a civil case, followed by the defendants, usually in the order in which they have been named in the lawsuit. In Barker v. Randolph, 239 So. 2d 110 (Fla 1st DCA 1970), it was held to be reversible error for the court to deny plaintiff’s counsel the opportunity to resume questioning of the panel after defense counsel raised new issues for the first time during defendant’s questioning. “Full exploration of a questionable juror by the party who may be the receiver of the unfairness of the juror should not be denied when his counsel fully and in good faith previously interrogated the panel, but prejudicial information was not forthcoming until his adversary questioned the jury.”

In Sanders v. State, 707 So. 2d 664 (Fla. 1998) it was held to be reversible error for the court to refuse to allow defense counsel the opportunity to question and attempt to rehabilitate a prospective juror who was against the death penalty. The court observed the “general principle” that defense counsel must be afforded an opportunity to rehabilitate jurors who have expressed objections to the death penalty or conscientious or religious principles against its infliction.

c) Challenges for Cause: The rule provides that if any prospective juror 1) has any interest in the action, 2) has formed any opinion about the action, 3) is sensible of any bias or prejudice concerning the action, or 4) does not stand indifferent to the action, the juror should be striken by the court for cause. These topics are discussed in greater detail in other sections of this blog. (See “Qualifications and Disqualifications of Jurors” and “Any Reasonable Doubt Standard.”)  The rule also provides that when the nature of any civil action requires a knowledge of reading, writing, and arithmetic, or any of them, to enable a juror to understand the evidence to be offered, the fact that any prospective juror does not possess the qualifications is a ground for a challenge for cause.

d) Peremptory Challenges: Both sides get the same number of peremptory challenges. The rules states “Each party is entitled to 3 peremptory challenges of jurors, but when the number of parties on opposite sides is unequal, the opposing parties are entitled to the same aggregate number of challenges to be determined on the basis of 3 peremptory challenges to each party on the side with the greater number of parties. Florida case law is clear that a party should never have to use a peremptory challenge to strike a juror who should have been stricken by the court for cause. Kopsho v. State, 959 So. 2d 168 (Fla. 2007), and commentary. Peremptory challenges are intended to cure the seating of a juror whom counsel suspects, but cannot prove, is biased. Busby v. State, 894 So. 2d 88 (Fla. 2004) at 101.

What is a “party” for purposes of determining the number of peremptory challenges? “When several persons whose interests are common are joined on either side of a civil action, they should be treated as but one party within the meaning of the rule. The interest of persons on the same side of an action must be essentially or potentially different or hostile to give each litigant the number of peremptory challenges allowed to a party.” Lemoine v. Cooney, 514 So. 2d 391 (Fla 4th DCA 1987) holding that Florida Patients Compensation Fund’s interests were neither different nor hostile from party it insured.

e) Exercise of Challenges: The rule provides that all challenges (peremptory and cause) shall be addressed to the court outside the hearing of the jury in a manner selected by the court so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court’s ruling on the challenge.

In addition to subsection (e) of the rule, the Supreme Court of Florida has elaborated on the procedures that should be utilized in the exercising of peremptory strikes. The Court has held that a litigant has a “right to view the panel as a whole in order to use his peremptory challenges intelligently and effectively.” Tedder v. Video Electronics, Inc. 491 So. 2d 533 (Fla. 1986). “The only fair scheme is to allow the parties to exercise their challenges singularly, alternately and orally so that, before a party exercises a peremptory challenge, he has before him the full panel from which the challenge is to be made.” Ter Keurst v. Miami Elevator Company, 486 So. 2d 547 (Fla. 1986). “This is not only the ‘better practice’ but should be the rule.” Tedder, supra.

Based on the foregoing principles, it is obviously error to require counsel to exercise all peremptory challenges when there are only eight prospective jurors in the jury box, because the exercise of all challenges could leave fewer than six prospective jurors in the box, and counsel would be unable to “see what’s coming.” See, Eastern Air Lines, Inc. v. Gellert, 438 So. 2d 923 (Fla 3d DCA 1983), disapproved in part by Ter Keurst, supra. The Ter Keurst opinion goes even further than Gellert and indicates it would be error to require counsel to use any peremptory strikes when there are only eight prospective jurors in the box: “After challenges for cause are made, those excess persons over the number of needed jurors plus the number of allowable peremptories should be excused so that counsel may know who will serve or not if excused.” Ter Keurst, supra.

And always remember that a party has a right to change his or her mind about any juror and backstrike into the panel at anytime. See “Right to Backstrike”

f) Swearing of Jurors: The rule states: “No one (emphasis added) shall be sworn as a juror until the jury has been accepted by the parties or until all challenges have been exhausted.” An issue frequently arises during jury selection as to whether the main panel can be sworn before the alternate jurors are selected. It would seem that inasmuch as alternate jurors will ultimately be sworn as potential jurors in the case, it would be a violation of this section of the rule to swear anyone until ALL challenges have been exhausted or until the parties accept all the jurors. There is no Florida case directly on point on this issue. The procedure was declined by the trial court in Lottimer v. NBHD, 889 So. 2d 165 (Fla 4th DCA 2004), but the appellate court did not directly address the issue of swearing the main panel before starting the selection of alternates. This procedure would, however, seem inadvisable (unless stipulated to by all parties) given the clear language of this section of the rule, and the following statement from the Supreme Court of Florida: “The court should postpone the swearing in chief of the jurors until the full panel is obtained, so as to allow the longest possible time for peremptory challenges.” Tedder v. Video Electronics, Inc., 491 So. 2d 533 (Fla. 1986)

g) Alternate Jurors: The rule provides for up one or more alternate jurors. Both sides get the same number of peremptory challenges to use in the selection of alternate jurors. Each side is entitled to one peremptory challenge in the selection of the alternate jurors, with both sides again getting the same aggregate number of challenges depending on the number of parties in the case. The rule provides “The additional peremptory challenges allowed pursuant to this subdivision may be used only against the alternate jurors. The peremptory challenges allowed pursuant to subdivision (d) of this rule shall NOT be used against the alternate jurors.”

h) Post-Verdict Interviews of Jurors: This final subdivision of the rule provides the procedure for challenging a jury’s verdict and interviewing jurors based on juror concealment or misconduct. This subdivision deals with post-verdict challenges to jurors. Florida case law indicates that if the court becomes aware of juror misconduct or concealment during a trial, the proper procedure is to replace the juror with an alternate juror, or alternatively declare a mistrial if no alternate juror is available. Wilson v. State, 608 So. 2d 842 (Fla 3d DCA 1992).