Article Author: Peter W. Riley
MTLA Magazine, Fall 1996
By: Peter W. Riley
Experienced trial lawyers recognize the critical importance of attorney-conducted voir dire in assuring the fair trial of civil actions. While much has been written about the style of inquiry on voir dire, many attorneys have little concept, beyond a vague notion that each juror must agree to be “fair,” of the specific grounds which justify a challenge “for cause.” The purpose of this article is to review the statutory provisions, practice rules, and case law as they relate to qualification and disqualification of jurors.
Imagine doing voir dire in a soft tissue case and then encountering the following exchange:
Attorney: Do any of you feel there are too many lawsuits today?
Juror #1: Yes, I certainly do. People are just too suit happy.
Juror #2: I agree.
Attorney: Is there anyone here that feels that chiropractors are less able to diagnose and treat injuries to the neck and back than a medical doctor?
Juror #3: My father was an orthopedic surgeon. He always called chiropractors “chiro quackers”. I really don’t think much of them.
Juror #4: I am a secretary for an orthopedic surgeon–I really have questions about chiropractors’ abilities.
Attorney: Your honor, I move to excuse Jurors #1, 2, 3, and 4 for cause.
Defense: Your Honor, may I inquire?
Court: You may.
Defense: Juror #1, notwithstanding your feeling there are too many lawsuits, can you be fair to Mr. Plaintiff in this case?
Juror #1: Yes. (Defense repeats the same questions, with the same response from each of the additional jurors)
Defense: Your Honor, we object to Plaintiff’s attempt to remove the jurors.
Court: Motion to excuse is denied.
Knowing that you have only two peremptory strikes, what do you do now?
The purpose of this article is to review the provisions of Minnesota statutes and Rules of Procedure that provide additional grounds to remove potentially biased jurors.
THE LEGAL FRAMEWORK OF JUROR QUALIFICATION
The basic qualifications for civil jurors are set forth in Rule 808 of the General Rules of Practice for District Courts. Rule 808(b) provides:
“To be qualified to serve as a juror, the prospective juror must be (1) a citizen of the United States, (2) at least 18 years old, (3) a resident of the county, (4) able to communicate in the English language, (5) be physically and mentally capable of rendering a satisfactory jury service, (6) a person who has had their civil rights restored if they have been convicted of a felony, (7) a person who has not served as a state or federal grand of petit juror in the past four years.”
The Rule goes on to note that a prospective qualified juror who is 70 years or older who requests to be excused from jury service shall be automatically excused without the necessity of submitting evidence of an inability to serve.
Persons who are eligible pursuant to Rule 808(b) are not disqualified unless they are a judge serving in the judicial branch of the government.
Rule 809 of the General Rules of Practice specifically prohibits discrimination based upon race, color, creed, religion, sex, national origin, marital status, status with regard to public assistance disability, age, occupation, physical or sensory disability, or economic status.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), the Supreme Court held that the Equal Protection clause of the U.S. Constitution is violated when a prosecutor uses peremptory strikes to remove jurors based upon their race. When viewed in connection with Rule 809, it is apparent that Batson may bar the use of peremptory strikes based solely on race, or any of the other basis for discrimination prohibited by Rule 809.
Of course, jurors, although qualified, may nonetheless be challenged for cause.
Minn. Stat. Section 546.10 provides:
“In any civil action or proceeding, either party may challenge the panel, or individual jurors thereon, for the same causes and in the same manner as in criminal trials, except that the number of peremptory challenges to be allowed on either side shall be as provided in this section.”
Thus, in addition to the basic qualifications of the juror, jurors are subject to challenge for cause on the grounds set forth in Rule 26.02(5) of the Minnesota Rules of Criminal Procedure. This Rule provides the following grounds for challenge for cause:
(1) The existence of a state of mind on the part of the juror, in reference to the case or either party, which satisfies the court that the juror cannot try
the case impartially and without prejudice to the substantial rights of the party challenging.
(2) A felony conviction unless the juror’s civil rights have been restored
(3) The lack of any qualifications prescribed by law to render a person a competent juror.
(4) A physical or mental defect which renders the juror incapable of performing the duties of a juror.
(5) The consanguinity or affinity, within the 9th degree, to the person alleged to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted, or to the defendant, or to any of the attorneys in the case.
(6) Standing in the relation of guardian or ward, attorney and client, employer and employee, landlord and tenant, or being a member of the family of defendant, or of the person alleged to be injured by the offense, or on whose complaint the prosecution was instituted.
(7) Being a party adverse to the defendant in a civil action, or having complained against, or being accused by the defendant, in a criminal prosecution.
The Rule also provides additional challenges for cause that are specific to criminal matters.
Of greatest significance, in today’s “tort reform” social atmosphere, is provision (1).
The goal of counsel’s inquiry of the jurors must be to identify persons in such a way as to persuade the trial judge that they cannot lay aside their preconceived notions and thus must be excused for cause.
In Leonard v. Parrish, 420 N.W. 2d 429 (Minn. App. 1988), Plaintiff recovered a verdict from the Defendants, but appealed alleging, among other grounds, that the trial court abused its discretion by refusing to allow Plaintiff’s counsel to inquire into juror’s attitudes on the “insurance crisis.” Plaintiff’s counsel was allowed to inquire whether the jury would have difficulty returning a verdict of the “size requested.” The Court of Appeals affirmed, noting that the Plaintiff did not assert any specific prejudice from the trial court’s refusal to allow the inquiry, also noting that “one commentator has suggested that specific inquiry into the ‘insurance crisis’ may actually be detrimental to plaintiffs by reminding jurors that ‘all of us pay for jury verdicts through insurance premiums.’” (420 N.W.2d at 634).
In Cummins v. Rachner, 257 N.W.2d 808, the Court considered Defendant’s appeal of a wrongful death verdict against a road construction contractor. One of the grounds asserted on appeal was that jurors indicated he was familiar with the area of the roadway in question and considered it a “trap.” Defense counsel moved for a mistrial, which was denied, after which the prospective juror stated that he had given the matter further thought and had another area in mind when he originally answered the question, and the juror went on to note that he could be a “fair and impartial juror.”
Defense counsel alleged on appeal that the juror’s initial statement, having been made in the presence of other prospective jurors, contaminated the entire panel and made a fair trial impossible. The Supreme Court rejected this contention stating:
“ A prospective juror need not be ignorant of the facts and issues, but rather must be able to lay aside his impressions and opinions to enable the jury to render a fair and impartial verdict.”
In State v. Howard, 324 N.W.2d 216, 220 (Minn. 1982), the Court of Appeals stated the test as follows:
“A juror must simply try to undertake the case fairly, and the trial judge being in the best position to observe the demeanor of the prospective juror, is to be given deference in determining whether the juror should be removed for cause.”
Similarly, the Supreme Court stated “ if . . .the jurors indicate their intention to set aside any preconceived notions, and demonstrate to the satisfaction of the trial judge that they are able to do so, [an appellate court] will not lightly substitute its own judgment.”
Courts in other states have been more direct in their assertion of the right of Plaintiffs’ counsel to inquire regarding insurance company advertising regarding large jury awards. For example, in Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688 (Mont. 1979), the Supreme Court of Montana discussed the impact of insurance company advertising in the context of the right of Plaintiff’s counsel to inquire about the influence of such advertising upon the jurors.
At the outset of the trial of this medical malpractice action, Plaintiff’s counsel had requested leave of the court to voir dire prospective jurors as to the influence of a national campaign by insurance companies in regard to damage awards. The Court noted: “The gist of the advertisements was that large jury awards would result in everyone paying higher insurance premiums.” The ad went on to state that juries were awarding large sums of money and that it is “you, the public, who can best begin to clean it up.” The Court went on to note:
“The possibility of serious prejudice resulting to personal injury plaintiffs as a result of the advertising campaign being waged by the insurance companies constrains this court to re-examine its rules and the propriety of the mention of insurance by attorneys on voir dire as evidence of the possibility of prejudice, see the psychological study reported at 65 ABA Journal 68 (1979) which concludes that ‘even a single exposure to one of these ads can dramatically lower the amount of award a juror is willing to give.’”
Citing 65 ABA Journal at 69. Noting that trial judge should permit “liberal and probing examination calculated to discover possible bias or prejudice,” the Court found that inquiry regarding the exposure to the advertisements and its effect on jurors should have been allowed in this case.
As can be seen from the foregoing, there exists substantial and well-reasoned authority to permit counsel to inquire into possible sources of bias, including publicity regarding the so-called “lawsuit crisis.”
Failing this, Plaintiff’s counsel retains the right to utilize peremptory challenges. Minn. Stat. § 546.10 provides:
“Each party shall be entitled to two peremptory challenges, which shall be made alternately beginning with the defendant. The parties to the action shall be deemed two, all plaintiffs being one party, and all defendants being the other party, except, in case two or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, may allow for the defendant or defendants on each side of the adverse interest not to exceed two peremptory challenges.” [Emphasis supplied.]
It is the author’s experience that defense counsel and most trial judges assume that each Defendant in a case should automatically be granted two peremptory challenges but, as is set forth above, this is not the law. At the beginning of each case involving multiple Defendants, it would be wise to present the Court with a brief relating to the topic of peremptory challenges to be allowed each side. For example, if Defendants have not cross-claimed, Plaintiff’s counsel has good grounds to point out that they are not actually adverse. In addition, defense counsel frequently cooperate in pre-trial proceedings, and all such instances of cooperation such as sharing experts and other unity of interest should be pointed out to the Court.
Failing this, however, the author has, on some occasions, persuaded the Court to increase the Plaintiff’s peremptory challenge to a number equaling those of the Defendants. Clearly it is the intent of Minn. Stat. § 546.10 to provide an equal number of peremptory challenges to each side of the case; allowing two strikes to each Defendant, while limiting Plaintiff to only two, creates an inherent imbalance which is unjust.
COUNSEL’S RIGHT TO CONDUCT VOIR DIRE
Much has been written about the importance of allowing lawyers to retain the right to conduct voir dire. Only counsel trying the case have the intimate knowledge of the facts and issues in the case necessary to conduct a thorough and searching voir dire. Both Minnesota Court Rules and Minnesota Statutes provide for the right to attorney conducted voir dire.
Minn. Stat. § 546.10 specifically states:
“Before challenging a juror, either party may examine the juror in reference to qualifications to sit as a juror in the case.”
In addition, Rule 47.01 of the Minnesota Rules of Civil Procedure provides:
“The Court may permit the parties or their attorneys to conduct the examination of perspective jurors or may itself conduct the examination. In the latter event, the Court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper.” [Emphasis supplied.]
The use of the mandatory shall clearly mandates that counsel be provided the opportunity to inquire of the jury. The only qualifier to this is that the examination by counsel must be deemed “proper” by the Court. However, nothing in the language of the Rule permit’s the Court to completely bar counsel from making inquiry.
The intelligent exercise of challenges to jurors for cause requires not only careful voir dire technique, but also clear knowledge of the provisions of the Rules of Practice and Procedure, as well as Minnesota statutory law, which provides the grounds for challenges for cause. Careful and even-handed application of the Rules by thoughtful trial judges, in combination with careful and probing voir dire conducted by skilled trial counsel will serve to greatly enhance civil justice in the State of Minnesota.
As the foregoing discussion of the statutory provisions of Minnesota Law, Procedure Rules, and case law establishes, there are numerous grounds for cause challenges to potentially biased jurors. Substantial authority exists to require courts to allow trial counsel to conduct voir dire, and only by a probing inquiry as to the juror’s background and biases can counsel and the court be assured that jurors are truly fair and impartial.
The current era of “Tort Reform” mandates that counsel carefully consider inquiry into juror’s feelings about lawsuits and amounts of jury verdicts. As advocates we must be vigilant in enforcing all juror qualification requirements, and especially sensitive to potential juror bias from insurance company advertising about jury verdicts and tort reform.