A New Rule for the Jury Selection Process
by Bryan W. Wolford on 05/06/10
Johnson v. McCullough, No. SC90401, March 9, 2010
In Johnson,
the Court upheld the circuit court's order granting a new trial for the
plaintiff on the basis of juror misconduct, and foreshadowed a new procedural
rule. The underlying case was a medical malpractice action. During the jury
selection process, the plaintiff's attorney asked the potential jurors if any
of them had been a plaintiff or a defendant in a lawsuit other than a family
law case. Some raised their hands and disclosed their part in a variety of
lawsuits. Then, plaintiff's attorney asked his question a second time, just to
be sure.
One potential juror did not respond to
the question. This person was chosen to sit on the jury. In fact, the juror had
been the defendant in a personal injury case and in multiple debt collection
cases. Three of the lawsuits in which the juror was involved were filed within
two years prior to the current trial. The case was eventually tried and
submitted to the jury, who ultimately returned a verdict in favor of the
defendants.
Following the verdict, plaintiff's lawyer
examined the juror's prior litigation history on Case.net, Missouri's automated
database of court cases and records. The search uncovered that the juror had
been involved in prior civil cases, and that the juror had failed to disclose
his involvement during the selection process. Plaintiff filed a motion for a
new trial with the circuit court, citing the intentional nondisclosure by the
juror as his claim of error. The circuit court conducted a hearing, and found
that a new trial was warranted.
Defendants appealed the circuit court's
order arguing that the plaintiff's question to the potential jurors was
unclear; that the juror's failure to disclose his involvement in past civil
lawsuits was unintentional; and that plaintiff's nondisclosure argument was
untimely because it was raised after the trial had concluded and the jury had
rendered a verdict adverse to the plaintiff.
The Missouri Supreme Court held that
the question regarding whether any of the potential jurors were plaintiffs or
defendants in any case was sufficiently clear, and that a reasonable potential
juror would have understood what plaintiff's counsel was asking. Further, the
Court held that the circuit did not abuse its discretion by ruling that the
juror's nondisclosure was intentional because the plaintiff's lawyer's question
was clear; the juror did not respond; and the juror had extensive and recent
involvement in prior litigation.
On the issue of timeliness, the Court
held that the circuit court correctly allowed the plaintiff's motion because
the law at the time did not prohibit the introduction of evidence of a juror
nondisclosure after a verdict. Further, the Court found that the Defendants did
not produce any evidence that suggested it was feasible for the plaintiff's
attorney to have investigated the prior litigation history of all of the
potential jurors before the actual jury was empanelled for trial.
Although it upheld the order granting
the plaintiff a new trial, the Court determined that new technology, including
the database Case.net, increased the ease by which litigants could investigate
the case history of potential jurors. The Court deemed it appropriate to place
a greater burden on the parties to inform the trial court about the prior
litigation history of potential jurors before the trial jury is empanelled. The
Court announced a new rule that "a party must use reasonable efforts to examine
the litigation history on Case.net of
those jurors selected but not empanelled . . . prior to trial," and that "the trial courts are directed to ensure the parties have an opportunity to
make a timely search" before the trial jury is empanelled. Finally, the Court
stated that it will formally promulgate a procedural rule requiring such
reasonable investigations in the coming months.
The Johnson decision creates a new responsibility on the plaintiffs and
defendants in cases to research the litigation histories of potential jurors on
Case.net before a jury is empanelled. Circuit court judges must allow the
parties a reasonable amount of time to make such inquiries. A Case.net search
may reasonably be performed in as little as five minutes per name searched. The
database sufficiently allows users to frame a search by name, date of birth,
and even geographical area. There is nothing to indicate that the forthcoming
Supreme Court rule will differ from the Johnson
holding.
Bryan W. Wolford
