Florida Jury Selection: When Discovering a Juror’s Litigation History, How Much Diligence is Due?
In Tricam Industries, Inc. v. Coba, the Third District Court of Appeal recently addressed the nagging question of attorney “due diligence” with respect to juror background checks. Ever since the Florida Supreme Court’s opinion in Roberts v. Tejada, 814 So. 2d 334, 339 (Fla. 2002), when a party receives a less than favorable jury verdict, that party might engage in post verdict research of the jury panel only to determine that at least one of the jurors had an undisclosed litigation history. This post verdict research then leads to a motion to interview jurors and a motion for new trial. Whether the lawyer and his client have a legitimate gripe will turn on whether they failed to exercise due diligence.
Despite the Court’s standard question about whether any of the jurors have ever been in a “lawsuit,” and despite a negative response from the juror, the records might reveal that in fact the juror has been in litigation. If the juror was in an civil lawsuit over an injury, and the case before the court is a personal injury lawsuit, then the juror has failed to answer the question properly and the issue of due diligence is not triggered. But what if the juror’s undisclosed litigation history relates to a bankruptcy, divorce proceeding, or collection action? In the context of the court’s questions, “lawsuit” seemed to mean personal injury action, and these other types of legal proceedings, though technically lawsuits, are not often perceived by jurors to be the same thing as what they are confronting in court during voir dire. In this instance, the inquiring trial attorneys would need to press for more information, either directly by questioning the jury panel further, or indirectly by performing background checks.
The Tricam Court addressed this exact issue. The Plaintiff ‘s lawyer failed to follow up the trial court’s questioning of the jurors. The trial court asked the entire jury panel about “lawsuits.” The case was a personal injury/wrongful death matter. Of the jurors who answered affirmatively to the question, the answers were in relation to their experience with personal injury cases. One of the jurors who was ultimately selected said “no,” he was not involved in any” lawsuits.” When the verdict was less than favorable for the plaintiff, the plaintiff’s lawyer did research and determined that the particular juror in fact had a history of divorce, foreclosure, and collection proceedings. The plaintiff argued that, had he known about this history, he would have stricken the juror.
The trial court denied the plaintiff’s motion for new trial. The Third District Court of Appeal affirmed the denial and noted that, although the Florida Supreme Court in Roberts does not require parties to do background checks on jurors during jury selection or during trial, there is nothing about Roberts that says parties are prohibited from doing such checks. In Tricam, the trial court actually suggested that parties conduct background checks before the jury retired to deliberate at a time when an alternate juror was still available. The parties did not follow through on the trial court’s recommendation. In Tricam, The Third District also pointed out that the plaintiff’s lawyer should have asked follow-up questions on the issue of “lawsuits” as it appeared from the context that the jurors interpreted the question to refer to personal injury cases, not all legal proceedings of any kind.
Practice Note: In our cases, we make it a practice of doing background checks on our jury panel during jury selection and we rush it to get it completed before jury selection is finished. As voir dire comes to a close, we approach the bench, provide a copy of our research to the other side and label our research as an exhibit for identification. We announce on the record that we are providing our research to the other side and to the trial court in case anyone wants to conduct further questioning before we begin the process of striking jurors. This way, any complaints regarding non-disclosure are hopefully confronted head on, and any failure to inquire further is forever waived.
For a copy of the Tricam opinion, click here.