FJAAPPELLATEPRACTICESECTION
SAYING THE MAGIC WORDS: PROTECTING YOUR CAUSE CHALLENGES BY ASKING THE RIGHT QUESTIONS by Tom Seider
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very litigant in Florida has a right to a fair and impartial jury— “an absolute prerequisite to our system of justice.” Williams v. State, 638 So.2d 976, 978 (Fla. 4th DCA 1994).1 Voir dire acts as a safeguard to that right. If a party’s questioning reveals even a reasonable doubt about whether a juror can be impartial, the trial court should dismiss that juror for cause. Id. at 978-79. And, close calls on impartiality should be resolved in favor of dismissal. Id.2 But, whether a prospective juror can be fair is not always a question easily answered. A juror is allowed to come to voir dire with preexisting opinions and biases. Gonzalez v. State, 143 So.3d 1171, 1177 (Fla. 3d DCA 2014). Dismissal for cause is reserved for only those jurors who cannot set their preexisting feelings aside to decide a case based on the evidence. Pacot v. Wheeler, 758 So.2d 1141 (Fla. 4th DCA 2000). Put differently: “A juror is not impartial when one side must overcome a preconceived opinion in order to prevail.” Pelham v. Walker, 135 So.3d 1114, 1116 (Fla. 2d DCA 2013). It is up to a trial lawyer to discover, through incisive questioning of the panel, whether any jurors hold intractable preconceived opinions. The author, as an appellate lawyer, professes no expertise in talking to juries.3 But, this article does hope to identify questions that have been recognized, at the appellate level, as eliciting a basis for excusing a juror for cause. More than that, these are questions that have led to trial courts being reversed for denying challenges for cause. This is significant, because a trial court’s discretion will almost always carry the day when it comes to cause challenges. Indeed, as the Florida Supreme Court has explained: “There are few aspects of a jury trial where we would be less inclined to disturb a trial judge’s exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empaneling of a jury.” Cook v. State, 542 So.2d 964, 969 (Fla. 1989). So, it is always worth taking notice when an appellate court overrides that discretion. To that end, below is a list of (paraphrased) questions that appellate courts have deemed sufficient to establish grounds for cause: a. Do you feel my client is not starting out on an even playing field? See Nash v. General Motors Corporation, 734 So.2d 437, 439 (Fla. 3d DCA 1999). 50 | May/June 2017 | www.FloridaJusticeAssociation.org
b. Is my client maybe starting out with a strike or half a strike against him? See Jaffe v. Applebaum, 830 So.2d 136, 137-38 (Fla. 4th DCA 2002); Club West, Inc. v. Tropigas of Florida, Inc., 514 So.2d 426, 427-28 (Fla. 3d DCA 1987). c. Is there a burden in your mind that my client has to overcome? See Goldenberg v. Regional Import and Export Trucking Co., Inc., 674 So.2d 761, 762-64 (Fla. 4th DCA 1996). d. Do you hope you can be fair, but you just aren’t sure? See Michael v. State, 796 So.2d 1292, 1293 (Fla. 3d DCA 2001). e. Do you feel that defendant has a little bit of an edge in this case? See Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 99496 (Fla. 4th DCA 2004).4 Admittedly, it might seem odd to treat the wording of these questions as talismanic. But, different trial courts (and appellate courts) can have very different ideas about whether a juror has truly revealed a reasonable doubt as to his or her impartiality. A trial court will have a much harder time disagreeing on impartiality, however, when a juror answers “yes” to an appellate-court-endorsed question. Thus, and as strange as it might seem, using a pre-approved colloquialism can greatly increase the likelihood—both at the trial and appellate level—of winning a cause-challenge argument. Take Nash v. Gen. Motors Corp., 734 So.2d 437 (Fla. 3d DCA 1999), as an example. There, the plaintiff used the magic words, asking a juror if her preexisting opinions would affect whether the plaintiff was “starting off with an even playing field or a strike against it.” Id. at 439. The juror answered by saying she was a fair person. Id. The trial court denied plaintiff’s cause challenge, but the Third District reversed on appeal, holding that the juror had not shown a willingness to set aside her biases. Id. at 440. And, for the opposite scenario, consider Samuels v. State, 11 So.3d 413 (Fla. 4th 2009), where the trial court denied a cause challenge directed at a juror who, when asked whether she could be fair, responded with, “I would do my best.” Id. at 415-16. The Fourth District affirmed on appeal, finding that that the juror had not said “she was uncertain whether she could be impartial,” and noting that the juror had not said anything about a party starting with a strike against it. Id. at 417. Both Nash and Samuels underscore the significance of using specific language during voir dire. It might be worth it, then, to swap out a