Day on Torts
A recent opinion from the Alabama Supreme Court reminds us that many things – even obscure things – can cause a reversal of jury verdict.
In Ford Motor Co. v. Duckett, No. 1090833, (Ala. 2/11/2011) a unanimous Alabama Supreme Court reversed a multi-million dollar verdict in favor of a plaintiff because the trial judge did not properly handle the jury selection process. The products liability trial was expected to last as many as four weeks, and the trial judge asked all potential jurors who were gathered in a jury assembly room to indicate whether they could serve during a three or four week trial. Those who indicated “yes” went through traditional voir dire. The defense objected to this course of action, saying that the judge was “asking for a jury of volunteers” in violation of Alabama law and that they were entitled to a randomly selected jury.
Despite the absence of any case law directly on point, the Alabama Supreme Court held this method of selecting jurors for participation in the ultimate jury selection process was inappropriate under Alabama law. The Court noted that while no one challenged the composition of the original jury pool, the trial judge committed reversible error when he reduced the size of the pool by asking who could serve for a trial expected to last three to four weeks.
The Court stated “the use of volunteer jurors ‘introduces a subjective criterion for … service not authorized by the [Alabama jury statutes],’ and ‘introduces a significant element of nonrandomization (sic) into the selection process that not only technically violates, but substantially departs from,’ an Alabama statute delineating reasons one can be excused for jury service.” [Citations omitted.]
The Court ordered a new trial because the trial judge’s act was more than a “mere irregularity” or “trivial administrative error” but rather a violation of Ford’s right to a randomly selected jury as contemplated by the Alabama Legislature.
Plaintiff’s counsel from across the country can expect this opinion will be added to the quiver of defense counsel, especially in products liability, medical negligence, and other complicated trials. Judges, especially those who stand for election, are often reluctant to force jurors into extended service in civil trials and may follow the path chosen by the Duckett trial judge.
So, armed with this opinion, how do you as plaintiff’s counsel protect yourself from reversible error? First, be aware of the law of jury service in your state. Your state probably has statutes similar to Alabama’s that set forth the circumstances under which a prospective juror can be released from jury service. If not, there may be common law to the same effect. In any event, know your law on this subject before trial.
Second, in the event the trial judge announces an intention to screen jurors in this fashion and an objection is raised, recommend to the trial judge that the questions about hardship caused by the length of the trial be reserved for formal voir dire. Why? Because then questioning recorded by the court reporter will reveal the reasons why a hardship is imposed, and the trial judge can make a decision on whether or not to excuse the juror based on a stated reason. A decision to excuse a given juror may not be the subject of an objection and the failure to make an objection as to the dismissal of a juror will probably result in a waiver. Even if an objection is raised, the claim of error will be reviewed by an appellate court on an abuse-of-discretion basis. Even if found to be error, the objecting party will have to prove that the error more likely than not affected the verdict or a substantial right to a fair trial. This will be a difficult burden to carry, particularly if the trial judge did not grant every request for hardship based on length of service.
Duckett reminds us of one other issue as well, and that is there are so many things that can go wrong in a trial. This error occurred on the first day of a trial that lasted longer than a month, and represented a tremendous investment of money, time and emotional energy of all involved. There are hundreds, if not thousands, of opportunities for reversible error during such a trial. Counsel must not only avoid creating error, but be on the lookout for objectionable acts or omissions of opposing counsel and the trial judge. Even when error is observed, counsel must make quick judgments about whether to raise an objection because, as we know, not all errors are created equal, many are not worth mention, and frequent objections, in front of the jury, can harm one’s case.
Some might read this and think that I am critical of plaintiff’s counsel for not requiring the trial judge to follow the law. Such an assumption would be wrong. First of all, at the time there was no law in Alabama that said what the trial court did was error. Indeed, the Alabama Supreme Court mentioned only two federal court decisions (and no opinions from other states) in support of its conclusion. Thus, there was no reason for plaintiff’s counsel to be concerned about error, even in the face of defense counsel’s objection.
Second, one must place plaintiff’s counsel’s decision in its proper context. This event occurred on the first day of trial. Even if counsel and the trial judge have a prior professional relationship, the early days of a trial are like the early days of a courtship – everyone is on their best behavior and trying to get a feel for boundaries. Judgments must be made about when to challenge a judge, and those judgments get easier as the trial progresses.
Third, I happen to be a friend of the plaintiff’s lawyer in this case, and know him to be extremely competent. He played this situation as the vast majority of us would have played it at the time given the lack of law on point.
However, the loss suffered by Ms. Duckett can help us avoid a similar loss for our clients.