New Trend Poses Threat In Subrogation Trials. Effective January 1, 2022, Arizona will become the first state to eliminate the use of peremptory challenges in jury selection in both criminal and civil trials—including the trial of subrogation cases. It isn’t news to the insurance industry that many (if not most) people harbor certain resentments against insurance companies. If those biased jurors are allowed to sit on a jury in a subrogation case where the role of the insurance company is made known, the subrogated carrier will have a less than favorable chance of prevailing. Unanimous juries are required in criminal cases across the country, but in civil cases such as subrogation, Texas requires a 10 to 2 verdict and almost one-third of states require only a mere majority for a verdict. Some states require a majority if the money at issue in the trial is below a certain amount, and a unanimous verdict all other times. With a biased juror on the panel, it is difficult to prevail.
From law school on, lawyers learn that many cases are won or lost in the jury selection process—often called voir dire, meaning “say the truth” in old French. During the jury selection process, potential jurors are questioned by attorneys in order to remove jurors with bias against their clients. The jurors are questioned regarding any knowledge of the case or potential biases they may have. After questioning a prospective juror, the lawyer can challenge the juror “for cause” if they are related to or an employee of a party. The lawyers can challenge an unlimited number of jurors if they feel the juror is prejudiced about the case. For example, an employee of Nabisco would not be a good juror for the plaintiff to have on the panel in a case in which Nabisco is the defendant. If a juror believes that no award for pain and suffering should ever be allowed, that juror wouldn’t be impartial in answering damage questions submitted by the judge in a personal injury trial.
In addition to the challenges “for cause”, lawyers are also allowed a certain number of peremptory challenges. These challenges allow a lawyer to remove a juror from the panel based only on a hunch. Traditionally, no reason had to be given. As long as the lawyer felt the juror would not serve the best interests of his client, he could strike a limited number of jurors in a “peremptory” challenge—meaning not open to challenge or appeal. Final. For many years this meant challenging certain women from a jury if you represented the husband in a domestic dispute or child custody case; or challenging a black juror if a criminal defendant was white, etc. A 2018 study in the University of Illinois Law Review revealed that prosecutors and judges tend to remove more African Americans while defense attorneys remove more whites. Today, peremptory challenges cannot be used to discriminate based on race or sex. But they are still powerful weapons that allow the subrogation lawyer to ply his or her craft in picking a jury which will not harbor prejudices against a subrogated insurance company.
So why did Arizona do away with such a powerful tool in one of the most important phases of any civil trial? According to Arizona Supreme Court Chief Justice Robert Brutinel, “Eliminating peremptory strikes of jurors will reduce the opportunity for misuse of the jury selection process and will improve jury participation and fairness.” We’re not exactly sure what that means, but we can say that if a lawyer feels a potential juror is detrimental to his client, a peremptory challenge is hardly a “misuse” of the jury selection process. According to Bloomberg news, “Supporters of the new rules said in written comments that the move would help juries be more reflective of the community and help eliminate discrimination or unconscious bias.” But wouldn’t the same unconscious bias and discrimination also apply to a juror sitting on a jury panel? There are many opponents of the elimination of peremptory challenges. Arizona Attorney General Mark Brnovich argued the change is unnecessary and will make it more difficult for litigants to receive fair jury trials. This rule also does not reflect the current practice of seasoned litigators. In high-value cases during the jury selection process, experienced attorneys will perform social media searches of members of the voir dire panel in real time. This allows the attorneys to see if the potential juror has leanings that may affect the juror’s deliberations. Arizona’s new rule deprives counsel of a tool to act on what is discovered. Further, even when an attorney establishes grounds for a dismissal of a juror for cause, judges often try to rehabilitate the juror by using the force of their position to get the juror to agree to follow the judge’s instructions on the law and suspend any bias. Often times the strike then becomes the only way to get such jurors off of the panel.
Most initial reactions to the Arizona decision suggest it violates the U.S. Constitution’s right to a jury of one’s peers. However, trial by a jury of one’s peers is not an explicitly stated constitutional right. Article II of the Constitution merely provides that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by jury.” The phrase “a jury of peers” goes all the way back to the Magna Carta in England. This provision ensured that members of the nobility were tried by a jury comprised of fellow nobles, rather than being judged by the king. Today, however, the term simply means “a jury of fellow citizens.”
Jury selection plays a key role in the litigation of subrogation cases because, like lawyers, many people have had bad experiences with and/or harbor a dislike for insurance companies. Voir dire gives the subrogation lawyer a chance to bond with and find friends among the jurors. It is a key opportunity to educate prospective jurors about complicated theories used in many subrogation cases. Some “rules of thumb” which often prove to be wrong but are still prevalent are:
- Homemakers make good defense jurors.
- Minorities are better for the plaintiff.
- German, English, and Scandinavian jurors are better for the defense.
- Middle-aged jurors are better plaintiff’s jurors.
Many subrogation cases are tried in the name of the insured specifically so that the jury doesn’t learn of the insurance company’s involvement. However, sometimes the insurance company is named as a plaintiff for jurisdictional purposes. One of the techniques we use is to ask the jurors for a show of hands regarding who does or doesn’t have insurance and who likes or dislikes their insurance company. We then ask each of them who can be fair in light of the fact that an insurance company is a party in the case. Selecting or challenging jurors with obvious insurance employment experience is an important topic because they are often able to deduce—and will often mention it to fellow jurors in deliberation—that insurance has likely paid for all medical bills already.
Voir dire requires asking the right questions and listening carefully for cues in the answers you receive. At least in Arizona, subtle answers which cue a bias against insurance despite the fact that the juror claims he or she can be impartial, cannot be remedied by removing the juror with a peremptory challenge. At least in Arizona, those are gone.
For questions involving the litigating of or handling of subrogation cases in Arizona and throughout the country, please contact Brad Matthiesen, who is licensed in Arizona and Wisconsin, at [email protected].