A recent decision by the Florida 5th District Court of Appeals (DCA) dealt with one of the many variables that can determine the outcome of an employee’s lawsuit against your company: jury selection. In Florida civil cases, a large pool of potential jurors is called to jury duty. On the morning of the trial, members of the pool are selected at random to sit on the jury that will hear the case. However, your lawyer’s right to question prospective jurors to determine if they are biased is very limited in federal court, where the judge handles most of the questioning. State court judges usually allow more leeway and may give your lawyer an hour or more to ask questions of potential jurors.
Your lawyer doesn’t get to “select” the jury that will hear your case. Instead, he may strike (or bar) potential jurors only for cause. “For cause” means a juror has said something in response to a question that indicates she may not view the case impartially. For example, in a Panama City case I tried, a prospective juror stated that his wife worked for the employer and he thought the company had discriminated against her. The court dismissed that juror for cause.
In a civil case with six jurors and two alternate jurors, your lawyer may get two or three “peremptory” challenges (depending on the custom and practice in the county), which he can use to strike a juror for no reason. Thus, a peremptory challenge is one of the main tools your lawyer will have to remove a juror who triggers a bad feeling in the defense team—call it a “gut feeling.” Traditionally, peremptory challenges in Florida have been exercised with unfettered discretion. The only limitation is that they cannot be used to discriminate against members of a distinct group by excluding them from jury service.
Trial courts needed some clarity and direction when faced with the possibility that a party is using a peremptory challenge in a purposely discriminatory manner. As a result, the Florida Supreme Court established a three-step analysis in Melbourne v. State to be used when one side claims the reasons for striking a juror are racially discriminatory:
- A party objecting to the other side’s use of a peremptory challenge on racial grounds must (a) make a timely objection on that basis, (b) show that the person is a member of a distinct racial group, and (c) request that the court ask the striking party its reason for the strike.
- The striking party must provide a race-neutral explanation for the strike.
- If the explanation appears to be race-neutral and the court believes that under the circumstances, the explanation is not a pretext, or excuse, for discrimination, the strike will be sustained.
The court’s focus in step 3 is not on the reasonableness of the explanation, but rather its genuineness. Throughout the process, the opponent of the strike always has the burden of proving purposeful race discrimination.
Jury Candidate Did not Appear ‘Engaged’ in Jury Selection Process
In Brevard County, the lawyer for Travelers Insurance used a peremptory challenge to remove a black female from the jury in a personal injury case. The lawyer for the injured victim immediately challenged the action by noting the juror is an African-American female and asked Travelers’ lawyer for a race-neutral reason for the strike. The company’s counsel responded that “based upon his personal observations[,] . . . he was striking her because she was inattentive and did not appear engaged in the jury selection process, thus giving counsel concern that if seated as a juror, this individual would not be focused, pay attention, and actually consider the evidence.”
The trial judge ruled that Travelers’ reason for the strike was “legally insufficient,” which placed the juror back on the jury. The insurance company lost the trial and appealed to the 5th DCA in Daytona. One of its reasons for the appeal was the trial judge’s finding that its lawyer’s basis for the peremptory challenge was “legally insufficient.”
Appellate Court’s Ruling
The 5th DCA viewed the reasons for the strike differently than the trial judge. The appellate court said that like a candidate’s verbal responses to questions during jury selection, her lack of interest, inattentiveness, or other nonverbal behavior can constitute a racially neutral reason for a peremptory strike. At the Brevard County trial, the lawyer for the injured person went on the record to indicate that his observations of the black juror were the opposite of Travelers’ lawyer’s impression. The appeals court found that when the parties disagree over whether nonverbal behavior supports a strike, the only way the proponent of the peremptory strike can satisfy the burden of producing a race-neutral reason is “if the behavior is observed by the trial court or otherwise has . . . support” in the record.
In this case, the judge agreed with Travelers’ lawyer’s observation that the juror was “not particularly engaged.” Thus, based on what happened during jury selection, the appeals court found support in the record (the trial judge’s comments) for the nonverbal observations that met step 2 of the analysis.
The 5th DCA held that Travelers was entitled to the presumption that its proffered reason for the strike was genuine. Since the trial court had misapplied the three-step process under Florida law, the appeals court sent the case back for a new trial—and a new jury. Travelers Home and Marine Insurance Company v. Gallo and Brock, Case Nos. 5D16-3158 and 4214 (Fla. 5th DCA, June 1, 2018).
Lesson for Employers
At trial, an employer doesn’t get to pick the jury. Strikes for cause are unlimited but hard to support with the potential juror’s answers to the jury selection questions. It is against Florida law to use a peremptory challenge to strike potential jurors on the basis of their race. The reasons for the strikes must be articulated by counsel and supported in the trial record. Florida courts will follow the three-step process outlined above to decide if a peremptory challenge is being used for discriminatory reasons.
You may reach Tom Harper at firstname.lastname@example.org.