In recent months, attorneys at Strong & Hanni have completed a number of jury trials. In those trials, it became apparent that many plaintiffs’ attorneys in Utah are requesting that trial courts ask jury panels voir dire on the issues of tort-reform bias and negative reports of personal injury cases generally. A careful review of Utah case law on this issue, including a recent case handed down by the Utah Court of Appeals earlier this year, shows that Utah appellate courts have taken the view that voir dire regarding tort-reform bias and negative reports of personal injury cases generally is absolutely necessary when requested by a plaintiff. It is clear from these cases that the trial court does not have the typical amount of ‘broad discretion’ given to trial court judges on voir dire when determining whether such questions should be posed. These cases further establish the right of a plaintiff to voir dire that allows a plaintiff to discover biases or prejudice in prospective jurors, which appellate court’s have concluded allows a plaintiff the right to the informed and intelligent exercise of peremptory challenges in the jury selection process.

The Utah Supreme Court has instructed “trial judges to take care to adequately and completely probe juries on all possible issues of bias.” State v. James, 819 P.2d 781, 798 (Utah 1991). The purpose of this probing is to facilitate “both the detection of actual bias and the collection of data to permit and form the exercise of the peremptory challenge.”State v. Taylor, 664 P.2d 439, 447 (Utah 1983) (Citations omitted). “All that is necessary for a voir dire question to be appropriate is that it allow [a party] to exercise his peremptory challenges more intelligently.” State v. Worthen, 765 P.2d 839, 845 (Utah 1988).

In Barrett v. Peterson, 868 P.2d 91, 101 (Utah App. 1993), the Utah Court of Appeals reviewed a case in which the trial court rejected the plaintiff’s request of voir dire which was designed to discover prospective jurors’ exposure to tort-reform issues and negative reports of medical negligence cases. The Utah Court of Appeals reversed the judgment of the trial court stating:

[T]he plaintiff is entitled during voir dire to elicit information from prospective jurors as to whether they have read or heard information generally on medical negligence or tort-reform, and to follow up with appropriate questions if affirmative responses are received.

The trial court’s failure to ask prospective jurors threshold questions sufficient to elicit information on jurors’ possible exposure to tort-reform and medical negligence information prevented appellant from detecting possible bias and from intelligently exercising his peremptory challenges. The trial court’s limitation of voir dire questioning substantially impaired appellant’s right to the informed exercise of his peremptory challenges and therefore constitutes reversible error. The judgment in favor of appellee is reversed, and the case is remanded for a new trial.

The Barrett court acknowledged that information from jurors regarding tort-reform bias is critical to permit a plaintiff to intelligently exercise his peremptory challenges and secure possible excuses for cause. In Evans v. Doty, 824 P.2d 460, 467 (Utah Ct. App. 1991), the Utah Court of Appeals explained:

In tort cases, and more particularly in medical malpractice cases, we cannot ignore the reality that potential jurors may have developed tort-reform biases as a result of an overall exposure to such propaganda. Accordingly, in cases such as this one, the plaintiff has a legitimate interest in discovering which jurors may have read or heard information generally on medical negligence or to reform….

Reason suggests that exposure to tort-reform propaganda may foster a subconscious bias within certain prospective jurors, and, had [plaintiff] been able to identify those jurors exposed to such propaganda, she could have more intelligently exercised her peremptory challenges.

Our initial impression when encountering proposed voir dire on tort-reform bias and negative reports of personal injury cases was that in order for a plaintiff to get a new trial, he would need to show an appellate court that had the trial court posed voir dire on tort-reform bias and personal injury bias to the jury panel, a different outcome would resulted at trial. However, in the Barrett case, the Utah Court of Appeals rejected this view and held that in the context of voir dire questioning, prejudicial error is shown if the plaintiff’s right to informed exercise of his peremptory challenges has been substantially impaired. The court explained:

An appellant claiming that the trial court’s unreasonable limitation of voir dire substantially impaired his ability to exercise peremptory challenges simply cannot prove, in the traditional way, that prejudice resulted from the error. Appellant cannot show with any certainty that had certain questions been asked, particular responses would have been received; that certain jurors would then have been challenged for cause or peremptorily; and that particular, more favorably predisposed jurors what have been seated instead, who would have deliberated to a different result. Accordingly, in this context, we apply the test enunciated in Hornsby: Prejudicial error is shown if the appellant’s right to the informed exercise of the peremptory challenges has been “substantially impaired.” 758 P.2d at 933.

Recently, in Alcazar v. University of Utah, 2008 UT App. 222, the Utah Court of Appeals reaffirmed, and arguably strengthened, its prior holdings that trial courts are obligated to elicit disclosure from prospective jurors during voir dire about their exposure to tort-reform propaganda and to negative reports about negligence cases. Id. at ¶ 14. The Alcazar court stated that a trial court does not necessarily have to accept the plaintiff’s formulation of tort-reform and negligence bias voir dire, but if it rejects plaintiff’s formulations, it is obligated to craft and ask questions sufficient to reveal whether prospective jurors have been exposed to tort-reform propaganda and negative reports of negligence cases. Id. at ¶ 14. For instance, in Alcazar, the trial court asked whether prospective jurors, close friends, or relatives were in favor or opposed tort-reform. However, when a panel member asked “What’s tort-reform?” the trial court cut off any further discussion. Id. at ¶¶ 14, 18. The court of appeals noted that the trial court’s approach did not enhance plaintiff’s understating of the prospective jurors’ exposure to tort-reform medical negligence material, which was prejudicial because he was not able to intelligently exercise his peremptory challenges.

Based on these cases, it is clear that when a plaintiff submits proposed voir dire to a trial court regarding tort-reform bias and personal injury bias generally, the court is obligated ask such questions to permit a plaintiff to exercise his peremptory challenges intelligently. In some cases, a trial court may even need to conduct private interviews with jury panel members to discuss potential biases.

In our opinion, these cases present several challenges for defending cases at trial. First, this will likely result in jury selection taking longer than it has in the past or than is necessary. Second, it appears from these court decisions that if a trial court refuses to ask proposed tort-reform bias questions, it will be defense counsel’s obligation to intercede and request that these questions be posed to the jury panel.  The plaintiff will have little motivation to do because if he does not achieve the result he desires at trial, he will have an issue to appeal that will likely get him a new trial. It is thus very plausible that a plaintiff could request such questions to be asked, without any objection from defense counsel, and that a trial court could decide on its own that such questions were meant to inflame the jury panel or could unreasonably extend the time for jury selection and decide not to ask the questions. According to these cases, the trial court would likely be overturned on appeal and the case would be remanded for a new trial even though defense counsel did not object to the proposed questions.

It is our view that this places an unreasonable burden upon defense counsel, but it is clear that it is a burden that must be met in order to prevent many of the trials that we undertake from being overturned on appeal and remanded for new trial.

 Written by Ryan P. Atkinson