Personal injuries verdicts can be overturned for what is called juror misconduct. As a trial lawyer that is very frustrating to try a case and get a favorable verdict, but then have the defense lawyer investigate jurors background’s and compare it to their testimony during jury selection.
In a recent decision the Missouri court of appeals held that nondisclosure can occur only after counsel asks the potential jurors a clear question that unequivocally triggers a juror’s duty to respond. If the question asked was clear, and the juror failed to disclose relevant information, the trial court abuses its discretion in failing to overturn the verdict by ruling that the failure to respond was unintentional nondisclosure. Nondisclosure is unintentional when the potential juror does not remember “the experience, or it was insignificant or remote in time, or when the [potential juror] reasonably misunderstands the question posed.” However, it is intentional when a potential juror “has no reasonable inability to understand the question and either actually remembers the experience or the purported forgetfulness is unreasonable.” The juror’s the experience was significant in that he wrote letters protesting the underlying claim and it should be in the juror’s recent memory because he and his wife had two default judgments rendered against them and were still making payments to satisfy the judgments during trial. Thus, his nondisclosure was intentional; and intentional nondisclosure about litigation experience are per se prejudicial and require a new trial.
In the recent case Ms. Ilene Massey brought a personal injury lawsuit against Mr. George L. Carter. After a jury verdict for Mr. Carter, Ms. Massey filed a motion for new trial on the basis of juror misconduct. In the motion for new trial, Ms. Massey claimed that Juror Stephen Pack failed to disclose information about prior litigation experience. During voir dire, Ms. Massey’s counsel asked the panel, “Have any of you ever been sued by anyone?” Juror Pack did not respond.
During a post-trial hearing, evidence was adduced that Juror Pack had five collection lawsuits filed against him and three of the five were recent lawsuits. A witness testified that Juror Pack knew about two of the recent lawsuits and the subsequent default judgments entered against him and his wife. Juror Pack testified that he remained silent when the question was asked because he did not consider debt collection as “being sued.” He also stated that the collection lawsuits never came to his mind because he thought the question was limited to personal injuries, car accidents, or other matters similar to the trial. The trial court denied the motion for new trial, ruling the “question was not a clear question” and “Juror Stephen Pack’s nondisclosure was unintentional.” Ms. Massey appeals.
The court of appeal in reversing the case wrote: “In reviewing a denial of a motion for new trial based on juror nondisclosure, this court must determine whether the trial court abused its discretion in finding that the nondisclosure was unintentional and that the unintentional nondisclosure did not prejudice the movant. Ewing v. Singleton, 83 S.W.3d 617, 620-21 (Mo. App. W.D. 2002). Although this court reviews the finding of unintentional nondisclosure for abuse of discretion, we review the clarity of the question de novo. Id.”
The court in its opinion also wrote: “A venireperson has a duty to fully, fairly, and truthfully answer all questions asked of him or her specifically, and those asked of the panel generally. Id. at 621 (internal quotation marks omitted). The duty to disclose is triggered only after a clear question has been asked. Brines v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). Failure to answer is considered nondisclosure, which can be either intentional or unintentional. Id. There is no nondisclosure if counsel does not ask a clear question. Id. A clear question is one that solicits a layperson to provide the undisclosed information. Ewing, 83 S.W.3d at 621. “The interpretation depends on the context of the question as well as the wording of the question.” Id.
Based on the fact that the question asked was clear and called for the prospective juror to reveal any lawsuit they were involved , the court held that the prospective juror’s failure to tell the trial court that he was a defendant in several collection lawsuits was intentional nondisclosure because the question was clear, and his inability to understand the question and his purported forgetfulness were unreasonable. Because intentional nondisclosure about prior litigation is prejudice per se, requiring a new trial.” Based on that finding the court reversed and remanded the case for a new trial.
As a tip for how to try to avoid this, I make it a practice to ask a fuzzy question. I ask potential jurors if they have ever been a party to a lawsuit but I am not interested in domestic relations cases, collections cases, bankruptcies or thing of that nature. If a juror does not respond but had been sued before, you can make an argument that the disclosure was unintentional because the question was not clear as to what “things of that nature” means. Most defense attorneys will follow up with a more specific question but this strategy has worked for me in the past.