Challenging For Cause During Jury Selection
There is a recent case issued by the Florida 2nd District Court of Appeal addressing challenges for cause when a potential juror acknowledges bias and lacks faith in the jury system. The case of Kochalka v. Bourgeois is a great primer on jury selection and contains good citations and case law for your trial notebook.
Kochalka is a personal injury lawsuit. During jury selection, plaintiff’s counsel asked very good questions that should be used in all jury cases. In asking the prospective jury panel if anyone had any life experiences that they could not put aside when considering the case, Plaintiff’s counsel used an analogy of fearing snakes. Would it be very difficult to put that fear aside and be forced to pick up snakes? That question elicited a positive response. The opinion quotes the colloquy between counsel and the prospective juror. It contains great language and questions to use when faced with the same response.
After inquiring with this particular juror, counsel went on to state: “Is there anyone who hasn’t already told us some things who feels like one side or the other starts out ahead because of your life experiences?” That question elicited several other positive responses. The opinion quotes the transcript and the sequence of questioning that the lawyer utilized to bring out the prospective bias.
Trial lawyers are frequently faced with significant problems in seating a jury. Today’s panels can be cut in half just from jurors trying to get out of jury service and coming up with many excuses not to serve, whether true or false.
This opinion points out the tactic used by plaintiff’s counsel when he ran out of cause challenges. He asked for another one and, on the record, explained why he was asking for another cause challenge and who he was going to strike. When the judge denied his request, and actually seated the objected to panel member, plaintiff’s counsel brought up the issue again and objected to the jury as eventually seated. This is a vital objection that must be made when a request for additional cause challenges has been rejected. If you don’t object to the seated jury, you can be deemed to have waived the failure to grant additional cause challenges.
Another prospective juror opined that she could not be fair because she did not believe in the jury system. Further questioning brought out this preconceived bias. Having no faith in the jury system should have led to her disqualification.
This opinion also dealt with the exclusion of expert testimony by a treating physician as to the probable causation of the underlying injury. The defense attorney successfully objected to testimony regarding causation by arguing it was a biomechanical opinion and not an orthopedic medical opinion. This was error. The doctor was doing nothing more than engaging in a differential diagnosis analysis and identifying (or in this case eliminating) a potential cause of the injury.
This is a vital quote that needs to be kept in your back pocket when dealing with these issues. We have already seen numerous examples of judges deciding they are the “gatekeeper” for purposes of 90.702 expert testimony. The language contained within this opinion should be used when questioning medical experts so you can track the questions and site this opinion for support that medical doctors have the ability to opine about reasons for injuries.
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