Litigation

Have You Ever Been In Court?

By Robert W. Kelley, Esq.

Last week the Fourth District Court of Appeal reinstated a $4.9 million dollar jury verdict against State Farm Insurance Company in a UM case that had been set aside by the trial judge on the grounds of “juror non-disclosure” about the juror’s prior litigation history. In Gamsen v State Farm, 36 FLW D1630A (Fla 4th DCA 2011), the appellate court held that State Farm’s counsel had “quite simply” not asked pertinent questions during jury selection to elicit information about the juror’s litigation history. The court found a lack of “due diligence” by State Farm’s counsel. Additionally, the Court held that even if the proper questions had been asked by State Farm there was nothing in the juror’s past that was relevant or material to the pending rear-end collision UM case. The trial judge erred in setting aside the verdict.

This case once again emphasizes the importance of asking clear and straightforward questions during jury selection. Just because a trial judge may ask  jurors a generic question concerning whether they have “ever been in court for any reason” (as was done in Gamsen), trial counsel still has a duty to use due diligence and follow up with specific questions if litigation history is an area of concern during jury selection. As the appellate court noted here, just because a potential juror may have been involved in tenant evictions or domestic matters in the past, that does not necessarily mean the potential juror had actually “been in court” as was asked here, or that those matters are material to the pending case. Many cases and legal matters are resolved without ever actually going into a courtroom. In other words, “being in court” is not necessarily the same as being involved in litigation. There was insufficient evidence to conclude the two jurors in this case had failed to disclose anything about their litigation history because “no one bothered to ask them.”

Questions asked during jury selection should be short and clear. Voir dire questions should be planned well ahead of the start of the trial, and should be designed to explore the areas that truly concern your case. Think about your words from the juror’s perspective. “Being in court” may mean something different to a lay juror than it does to a lawyer or a judge. It is that way with all your questions. There is a lesson to be learned in Gamsen. It is a case worth reading and keeping in your Voir Dire notebook.

Full post as published by The Florida Jury Selection Blog on August 01, 2011 (boomark / email).