IN THE COURT OF APPEALS
STATE OF GEORGIA
CASE NO. A01A0034

ED WALLS,
Appellant,
v.
TAE KWON KIM,
Appellee.

BRIEF OF AMICUS
GEORGIA TRIAL LAWYERS ASSOCIATION

PART I

INTRODUCTION

Trial by jury in civil cases is as essential to secure the liberty of the people as any of the preexistent rights of nature.

*James Madison (1789)

The jury system has come to stand for all we mean by English justice. The scrutiny of twelve honest jurors provides defendant and plaintiff alike a safeguard from arbitrary perversion of the law.

*Sir Winston Churchill (1956)

The gold standard with respect to fairness for any trial (and for any interested party -- plaintiff, state, defendant, judge, witness, juror, press or public) is the impaneling of a truly impartial jury. An impartial jury is the cornerstone of the fairness of trial by jury. The right to an impartial jury is the foundation of the public’s faith in our legal system. Fear that biased jurors will be allowed to sit in judgment imperils that faith.

There is simply no good or logical reason for a trial court to engage in the pretense of artificially “rehabilitating” a juror who has already manifested bias or favor. The case now before this Court highlights the problem, for here the trial court asked questions with the intent and for the purpose of keeping biased jurors on the jury rather than excluding them. No litigant should be forced to utilize a peremptory strike when a juror has expressed bias or interest against their case or in favor of the other side’s case. Rather, with the exception of certain circumstances such as confusion, misstatement or misunderstanding, once a juror has expressed bias, he or she should be immediately removed from the panel without the use of leading, loaded questions from the trial court intended to “rehabilitate” that juror.

The Georgia Trial Lawyers Association (“GTLA”), a diverse collection of roughly 2,500 attorneys devoted solely to the representation of individuals in the courtroom, offers as amicus curiae this brief in an attempt to inspire a fresh look, a new evaluation of this old practice. When a juror’s responses evince possible bias or favor, rather than mere confusion, there is simply no good reason for the trial court to become involved in trying to put that juror in a decision-making position. It is time to change the way juries are chosen in Georgia. The change recommended by amicus curiae is neutral – it benefits both sides, either side, in a civil case. The case now before this Court graphically demonstrates that this is so, for in this case, each side had a juror who manifested bias or favor “rehabilitated” by the trial court, forcing each side to use a peremptory strike on a juror who had no business being considered for service but who should have been stricken for cause.

Amicus curiae does not suggest that the trial court should never become involved in questioning jurors who appear to have indicated bias or favor. Sometimes jurors are merely confused. The trial courts must have discretion to ask appropriate questions if and when it appears the indication of bias or favor may have resulted merely from confusion or misunderstanding. Nor does this brief reflect any lack of trust in the trial courts’ ability to serve as factfinder in determining whether bias or favor has been suggested sufficient to warrant striking the juror for cause. The trial judge, who is closest to the action and in the best position to view the playing field, should retain discretion in this area. The problem is that, in too many trial courts, custom and habit has caused trial judges to ignore manifestations of bias and favor and to forget that the goal is a truly impartial jury, not the selection of any particular jurors. Trial courts’ discretion should be limited – there is no reason to rehabilitate jurors whose answers in voir dire manifest possible bias or prejudice.

There is no doubt that the practice of “rehabilitating” jurors who have given answers suggestive of bias or favor is contrary to the goal of getting a truly impartial jury. Everyone knows that. That is why trial lawyers, for both sides, routinely use peremptory strikes to get rid of jurors whose responses manifested bias or favor even though the trial court declared such jurors “rehabilitated.” That experienced trial lawyers, for both sides, virtually never believe such jurors have really been “rehabilitated” should prove, to a reasonable mind, that the ‘rehabilitation’ of a juror who honestly manifested possible bias or prejudice is fictitious.

It’s bad enough that leaving biased jurors on the panel forces a party to waste a peremptory strike. Perhaps even worse, the trial court’s interrogation of the juror, with leading questions, occurs in the presence of the entire jury panel and comes after the trial court has instructed the panel that the purpose of voir dire is to get an impartial jury and that each juror should honestly answer all voir dire questions. The ‘rehabilitation’ interrogation sends a message that is clearly, and directly, to the contrary.
STATEMENT OF FACTS

Walls v. Kim is a medical malpractice action against an emergency room physician. Before trial began, the trial judge chose not to strike for favor a nurse who worked in the same hospital as Appellee, had worked in the past with Appellee and who expressed bias in favor of Appellee’s case. Both Appellant and Appellee set out those portions of the voir dire transcript related to the questioning of Ms. McDole, the juror whom Appellant asked the trial court to remove for favor. The trial judge attempted to “rehabilitate” her and denied the challenge. The trial judge’s decision to leave Ms. McDole on the panel after she expressed bias in favor of Appellee is the central issue in this appeal.

The trial court also attempted to rehabilitate another juror, Mr. Kitchens, during defense counsel’s voir dire. Mr. Kitchens, who had known the decedent’s father well for over thirty years and who had indicated that it would be difficult to be fair, remained on the panel after Appellant’s counsel requested that Mr. Kitchens be “rehabilitated” in similar fashion as Ms. McDole. The relevant exchange, which is instructive here, occurred as follows:

Mr. McCall: I understand that you have known Harold and Flora McMillan, Mrs. Walls for some thirty-odd years.
Mr. Kitchens: Longer.
Mr. McCall: Close personal friends of yours?
Mr. Kitchens: Right.
Mr. McCall: You understand that whoever is selected to try this jury must be fair and impartial in this case. And it is absolutely critical to the proper meeting (sic) out of justice for every jury to enter the box completely impartial. You know that, don’t you?
Mr. Kitchens: Right.
Mr. McCall: Given the fact that you have known Mr. and Mrs. McMillan for so long, and they may testify in this case about their daughter, is it going to present a difficulty for you, is it going to be impossible for you to listen to the evidence that the Court allows into this case by testimony and documents and to listen to the law that His Honor will charge you applies to this case, and in the end render a true verdict? Can you do that or do you think you’ll have a problem?
Mr. Kitchens: I don’t think it will be impossible, but I think it would be difficult. I think we’d be going uphill, probably, just because I’ve known Mac for so long. I think I could render a fair verdict, but reaching a proper decision might be a problem.
Mr. McCall: Your Honor, I would ask that the juror be excused for cause.
Mr. Percilla: Your Honor, I would ask that this juror be rehabilitated like Ms. McDole was.The Court: I’ll ask Mr. Kitchens.
Mr. Kitchens, you understand it’s the obligation of a juror to be fair and impartial and to decide the case based upon the evidence as produced in the courtroom and also the law that’s given you in charge. Understanding that, can you set aside your personal beliefs and feelings and render a verdict that is fair and impartial?
Mr. Kitchens: Yes, sir. If I got selected for the jury, I would do my best to arrive at a fair verdict.
The Court: Well, the real question is, either you can or you can’t. Doing you best is not what we’re after. We’re after your ability to decide it impartially, setting aside your personal beliefs and feelings and the other relationship. Can you do that, yes or no?
Mr. Kitchens: Yes, sir.
The Court: Thank you.

(Defendant’s Voir Dire Transcript, pp 7-9.)

This case thus demonstrates how the fiction of “rehabilitation” harms both sides in a civil case. One juror manifested bias or favor for plaintiff; one for defendant. Neither prospective juror had any business remaining on the jury. Removal of both for cause was sought and denied by the trial court on the basis that each of the two jurors had been “rehabilitated” by the trial court’s leading questions. Both parties then had to use up a peremptory strike, for counsel for each side knew the “rehabilitation” was a fiction. It is time for this to end. Neither party and no one interested in the proceedings should be made to feel that the trial court has lost interest in the impartiality of the jury. The “rehabilitation” process infects the entire proceeding. What must other prospective jurors think about the legal system when they hear responses that, to a reasonable mind, prove potential partiality, then watch and hear the presiding judge use leading questions to direct the juror to change his or her answer?

PART II

ARGUMENT AND CITATION OF AUTHORITY

1. Once Any Bias Or Favor Is Expressed, The Juror Should Be Stricken From The Panel Without Using “Rehabilitating” Questions.

Anytime a juror makes a statement which legitimately puts his or her fairness in doubt, that juror, upon proper challenge by a party under O.C.G.A. § 15-12-134, should be stricken from the panel. This is the only way to ensure that an impartial jury is assembled. The juror should be free from the suspicion of bias. Temples v. Central of Ga. Ry. Co., 15 Ga. App. 115, 119, 82 S.E. 777, 779 (1914). Bias means “only a leaning toward one of the parties rather than the other.” Id. at 122, 82 S.E. at 780. Old yet venerable, Temples had it right:

when the evidence discloses facts from which bias or interest is to be inferred, the court must take judicial notice of the fact that the juror will most probably act in accordance with the bias disclosed.

Id. at 115, 82 S.E. at 777 (emphasis added). As this Court poignantly observed in Temples,

[t]he fundamental rule underlying all rules as to the competency or incompetency of jurors is the court’s judicial knowledge of the extreme improbability that a human being, even though he may be a juror, will readily acquiesce in a finding adverse to his interest, his bias, or his prejudice.

Id. (emphasis added).

1. Common Sense, Research and Case Law Show That People Are Likely To Maintain Their Initial Biases and Prejudices.

The wisdom of Temples gets to the heart of the matter. Social psychology research indicates that, even facing contradictory evidence, people generally persevere in their initial attitudes and biases. Arthur H. Patterson, Ph.D. and Nancy L. Neufer, M.S., Removing Juror Bias by Applying Psychology to Challenges for Cause, 7 Cornell J.L. & Pub. Pol’y 97, 98 (1997). According to Dr. Patterson and Ms. Neufer, persons who enter a situation with a prior attitude are likely to interpret new information in a way that will strengthen that attitude. Id. Contradictory information will be interpreted to support that preexisting attitude. Id. Researchers discovered that “information consistent with a preferred conclusion is examined less critically than is information inconsistent with a preferred conclusion,” so “less information is needed to reach a preferred conclusion.” Id. The research merely confirms common sense – something those who work regularly and successfully with human beings universally know to be fact.

Moreover, with respect to rehabilitative questioning after disclosing bias or interest, most people feel social pressure to state that they can be fair and impartial in order to gain the approval of the judge, lawyers, or other prospective jurors. Id. at 102-03. This pressure creates “socially desirable responses,” which are given so that the juror can avoid appearing deviant or different in any way from the other jurors. Id. at 103. The result is that the biased juror engages in role-playing to avoid appearing less than impartial. Id. at 103. Having expressed bias or favor, virtually every juror confronted by a berobed interrogator whose words and tone patently direct the desired response will indeed respond “appropriately.” It is a fiction. It is pretense. It is the antithesis of an honest search for fairness in jurors.[1]

The court in Temples knew these observations of “human experience” to be true and advised “[i]n the interest of fair trial, if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors, rather than in a too technical observance of the letter of cases previously adjudicated and an attempt to bring the facts of other cases within some particular ruling.” 15 Ga. App. at 121, 82 S.E. at 779 (emphasis added). These are the principles that trial judges and litigants should be furthering in the courtrooms in Georgia. Eighty-seven years after Temples, surely it is time to make those principles clear to trial courts. The safest course, to take the guesswork out of whether a juror will retain, strengthen or change their bias, is to simply remove that juror. No litigant should be forced to use a peremptory strike on a juror who has already expressed favor for one party over the other. No party is entitled to a particular juror. See Hill v. Hospital Auth. of Clarke County, 137 Ga. App. 633, 636, 224 S.E.2d. 739, 742 (1976)(“[a] party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury.” (quoting Grasham v. Southern Ry. Co., 111 Ga. App. 158, 161, 141 S.E.2d 189, 191 (1965))).

2. Modifying the Practice of Rehabilitating Jurors Would Not Invade the Province of the Legislature and Would Not Require the Current Statute to be Rewritten.

The course proposed by the GTLA would not invade the province of the Legislature, would not require the current statute to be overhauled and would not otherwise run afoul of separation of powers principles. The civil bias statute, O.C.G.A. § 15-12-134, does not contemplate “rehabilitative” questioning by the trial court nor are any “statutory” questions required as in criminal cases. See O.C.G.A. §§ 15-12-163 and 164. O.C.G.A. § 15-12-134 requires the trial court to simply “hear the competent evidence respecting the challenge” and “determine the challenge according to the opinion it entertains adduced thereon.” The course recommended here by the GTLA does not require the Legislature to rewrite the statute or ask the appellate courts to ignore any existing statutory framework. Indeed, the Georgia Supreme Court has noted the absence of a test for the disqualification of a juror for favor. See Jordan v. State, 247 Ga. 328, 339, 276 S.E.2d 224, 234 (1981), rev’d on other grounds, Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985).

“Rehabilitative” questioning has been judicially created and grafted upon existing guidelines. After a juror has expressed bias or favor and before any attempt to “rehabilitate” the juror, everyone knows it is likely that juror will be partial. It makes no sense for the trial court, imbued as it is with majesty and authority, to then ask leading questions trying to get that juror to change his or her response. A strong, well-reasoned opinion from this Court can end the injurious effects of such questioning without hamstringing trial judges and while at the same time promoting one of the celebrated goals of our judicial system – putting a group of truly impartial citizens in the jury box.

The proposal is simple, workable and sensible: once a juror has expressed bias or favor for or against any party’s case, that juror should be removed from the panel by the trial judge utilizing his or her discretion without the use of “rehabilitation” questions intended to create the pretense that the previously expressed bias or favor has been removed. If the juror’s response to voir dire questions which seem to evince bias or favor really results only from confusion or misunderstanding, that should be apparent to the trial court, which can then be sure the juror understands. The trial judge should not, however, ask leading questions and seek to direct the ‘appropriate’ responses. The only ‘downside’ to this approach is that a juror might be lost to a strike for cause when he or she was merely confused. That is no loss. There are plenty of competent jurors – certainly more than in 1914 when this Court in Temples recognized the truths upon which this brief are based. No party has a right to any juror; the trial court has no interest in whether any prospective juror serves on the jury.

2. Reasons To Modify The Current Practice Of Rehabilitating Jurors.

1. There is Currently No Test for Disqualification for Favor in the Civil Context.

Jordan, cited and relied upon by Appellee, needs to be carefully considered here. In Jordan, a felony criminal case involving murder and mutiny at a state penal institution, the juror in question, Mr. Murphy, stated that he “would do his best to keep an open mind” but that it would be “hard for him to base his decision strictly on what he heard in the courtroom because he had worked with the deceased guard.” 247 Ga. at 340, 276 S.E.2d at 235. However, in response to the “statutory” questions of O.C.G.A. § 15-12-164, Mr. Murphy reported that he had no fixed opinion as to the guilt or innocence of the defendant. Id. Despite his earlier expressions of favor for the State’s case, the trial court overruled the defense’s challenges for favor. The appellate courts affirmed the ruling.

As pointed out in Jordan, no test for disqualification for favor has been established in the civil context. “[T]his provision [O.C.G.A. § 15-12-133] deals with the scope of voir dire but does not set forth the test for disqualification for favor.” Jordan, 247 Ga. at 339, 276 S.E.2d at 234. O.C.G.A. § 15-12-133, which concerns both civil and criminal cases, refers to the “usual voir dire questions . . . put by the court” but these statutory questions are exclusively for use in criminal felony cases. See O.C.G.A. § 15-12-164. These questions from O.C.G.A. § 15-12-164 make up the test for disqualification for favor in the criminal context but there is no corresponding test in the civil context other than the judicially-created rehabilitative question. That leaves ample room for this Court or any appellate court to fill the void with a standard such as that proposed here; a standard that will benefit everyone.

This Court has already intimated in Luke v. Suber, 217 Ga. App. 84, 87, 456 S.E.2d 598, 601 (1995), aff’d, 266 Ga. 408, 467 S.E.2d 891 (1996), that former patients and spouses of former patients of physicians should be removed from the panel. Luke signals the need for more guidance in this important area of selecting jurors and the only fair policy is the removal of more jurors for bias without the utilization of “rehabilitative” questions.

2. Civil Litigants are Afforded Fewer Peremptory Strikes than Parties in Criminal Cases.
A second significant feature to Jordan is the stark difference in the number of peremptory strikes afforded civil litigants as opposed to their criminal counterparts. Civil litigants, in non-equity cases, are entitled to a jury trial. O.C.G.A. § 9-11-38. If the case involves over $10,000, either party may demand a twelve-member jury. O.C.G.A. § 15-12-122(a)(2). With a twelve-member jury, plaintiffs get six peremptory strikes and defendants also get six peremptory strikes. Id. at (b). In non-capital felony cases, the criminal defendant may peremptorily challenge 12 jurors while the state may peremptorily challenge 6 jurors. O.C.G.A. § 15-12-165. In capital cases, where the death penalty is sought, the number of peremptory challenges afforded the accused swells to 20 while the prosecution receives 10 such strikes. Id. Why is this important? As candidly stated by the Supreme Court in Jordan, “[o]ur strict rules as to juror disqualification for favor are offset by the large number of peremptory strikes allowed a [criminal] defendant . . ..” 247 Ga. at 340, 276 S.E.2d at 235. But these “strict rules as to disqualification for favor” are based upon an equally strict (and specific) test that is mapped out in O.C.G.A. § 15-12-164 for those involved in criminal trials. As if to counter this point, Appellee here offers that where a prospective juror indicates bias but then states that they think they can be impartial, the peremptory strike is available to remove that juror from the panel. See Foster v. State, 248 Ga. 409, 411, 283 S.E.2d 873, 875 (1981). However, the civil litigant, plaintiff or defendant, is left with less strikes at his or her disposal than the criminal defendant (and the state in the capital case). There is no offset in the civil context so there is no basis for the “strict rules as to disqualification for favor.”

The criminal cases, where a specific test for disqualification for favor exists (O.C.G.A. § 15-12-164) and where a larger number of peremptory strikes are available (O.C.G.A. § 15-12-165), form the backdrop and supply the judicial reasoning for most cases in this area of striking jurors for favor which have condoned the trial courts’ decision to leave biased jurors on the panel. Since fewer peremptory strikes are available in civil cases, it makes sense to instruct trial courts to strike for cause prospective jurors who express bias or favor. It makes no sense to require the civil litigant to waste one of his or her few peremptory strikes removing a person who is not qualified to be called a truly impartial juror.

3. The Jury’s Verdict Must Be Unanimous.

In Georgia, the jury’s verdict must be unanimous. All jurors must consent to the verdict. This places increased pressure on the parties to get truly impartial jurors on the panel. One dominant, biased juror can literally control the outcome of any given case. Thus, trial courts’ habit of attempting to “rehabilitate” jurors taints the entire process. This pressure is diminished in jurisdictions where less than a unanimous verdict is necessary to find in a party’s favor. [2]

It is worth considering in the context of rehabilitative questioning that a unanimous verdict is currently required in Georgia and thus far greater pressure exists for the impaneling truly impartial jurors.

4. Public Trust and Judicial Economy.

Is there a better way to improve the public’s confidence in the jury system than allowing the trial judge to strike for favor biased jurors rather than attempt to “rehabilitate” them? Most lawyers are highly suspicious of jurors who express bias but then state they can be fair. Those jurors are always the first to be stricken if the judge refuses to grant a motion to strike for cause. If litigants know, prior to coming to court, that biased jurors will be removed and not rehabilitated, those litigants, plaintiff and defendant alike, will feel more confident that they are getting a fair trial.

The number of appeals would certainly be cut down under the process proposed here by the GTLA. More jurors would be removed from the panel under our proposal. The appellate courts would still count on the trial judges to remove for cause those who should be removed. The standard of review would and should remain the same. There would be little or no second-guessing of the trial judge’s decision. Since more jurors would be removed, there would be fewer jurors remaining that would need to be removed with a peremptory strike.[3] The result is fewer appeals. The GTLA’s proposal is easier, cleaner, and more streamlined.

3. The Trial Court Abused Its Discretion By Refusing To Strike Ms. McDole For Favor In This Case.

Ms. McDole should have been excused even under the existing practice of rehabilitating jurors because after appropriately responding to the trial court’s leading questions she continued to express bias in response to plaintiff’s counsel’s questions. Boyle v. State, 241 Ga. App. 883, 885, 528 S.E.2d 303, 304 (2000); Meintzer v. Weinberg, 212 Ga. App. 307, 307, 441 S.E.2d 774, 775 (1994). In both Boyle and Meintzer, the prospective jurors in question initially expressed some level of bias and then, after questioning by the court, each stated that they would “try” to follow the judges instructions and be fair. Both jurors in those cases were stricken for cause and the same result should have occurred here.

After Ms. McDole was ostensibly “rehabilitated,” the following exchange occurred:
Mr. Percilla: Ms. McDole, is it fair to say that representing the plaintiff, which I do, you have already candidly stated we don’t start off even with the defendant; is that correct?
Ms. McDole: Yes, sir.

(Plaintiff’s Voir Dire Transcript (“PVDT”), p. 8.) Ms. McDole initially affirmed that she “probably” hoped “that things came out Dr. Kim’s way.” (PVDT, p. 6.) She further agreed that the scales were not equally balanced because of her professional relationship with Dr. Kim. (PVDT, pp. 6-7.) In the wake of these statements clearly showing favor for Dr. Kim, she told the court that she could be impartial but then reaffirmed that the plaintiff’s case was not on equal footing with that of the defendant. The bias had been revealed and even buttressed. Ms. McDole should have been stricken from the panel.

Those cases, like Green v. Wilcox, 206 Ga. App. 192, 424 S.E.2d 801 (1992), which held that persons working in the same professional field should not be per se disqualified are inapposite here for several reasons. First, the juror in Green, a physician working in a different specialty but at the same hospital, responded more unequivocally to the trial court’s questions as to whether he could be impartial. 206 Ga. App. at 193, 424 S.E.2d at 802. He did not acknowledge after being “rehabilitated” that he still leaned toward his fellow doctor.

Second, and more importantly for the present case, the doctor-doctor relationship in Green was substantially different than the doctor-nurse relationship here. While Dr. Kim or his practice group may not literally write Ms. McDole’s paycheck, the nurse finds herself in a subordinate role to the physician in the hospital structure. Here, both worked in the emergency department at the same hospital. She had worked personally with Dr. Kim. She would feel enormous pressure to return a verdict in his favor. The question is this: Could she seriously take a verdict against Dr. Kim back to work with her? The answer is clearly, and obviously, “no.” This would be much too costly and leave her with the threat of being unable to find good work in the area while at the same time forcing her to run the risk of estrangement from professional peers and perhaps social friends. There should be no reason to speculate as to the legitimacy of such pressures. The safest course, the most preferred, is to strike her for cause since she is not free from the suspicion of bias.

CONCLUSION

It is past time to acknowledge the obvious: when a juror has manifested bias or favor, sudden intervention into the voir dire process by a robed eminence asking leading questions which all in the courtroom know are intended to elicit specific responses cannot magically eliminate the bias or favor. Such “rehabilitation” is a fiction. Practitioners know that is so. Those citizens in the jury pool know that is so. The problem is not merely that the past custom and habit of trial courts in this state forces parties to have to use peremptory strikes when bias or favor has been demonstrated sufficient to disqualify the juror. The very act of the trial court in “rehabilitating” a juror whom the entire jury pool has heard express doubt about their own impartiality undercuts the entire process; jurors who have been told how important it is to get a fair and impartial jury and to answer questions honestly so that may be achieved suddenly see the trial court itself acting to the exact contrary.

“The beginning of wisdom is to call a thing by its right name.” Truthfully, almost no one does believe, and no one should believe, that a juror such as Ms. McDole, who says plaintiff doesn’t start off even with the defendant and that she “probably” hopes “that things come out Dr. Kim’s way” can possibly be truly impartial, or that a juror such as Mr. Kitchens who honestly confesses it would be “difficult” for him to be fair and that “reaching a proper decision might be a problem” can possibly be truly impartial. Yet the habit and custom of “rehabilitating” jurors who manifest bias or favor led the trial judge in this case to declare, by refusing to strike for cause, that both these jurors were what they obviously were not – fully qualified, truly impartial. Georgia can afford better justice than that. Rough justice is no justice at all.

BUTLER, WOOTEN, OVERBY, FRYHOFER,
DAUGHTERY & SULLIVAN
By: James E. Butler, Jr.
Joel O. Wooten, Jr.
Richard A. Griggs

THOMAS WILLIAM MALONE, P.C.
By: Thomas William Malone
[1]
Indeed, some trial judges consider it their duty to obtain the ‘appropriate’ response to the “rehabilitation” questions and consider a juror’s failure to respond ‘appropriately’ an affront to the court. Virtually any trial lawyer – for plaintiff or defendant – has had experience with trial judges who literally grilled prospective jurors until the court got the ‘appropriate’ response. Why? The point of this brief is to suggest that there is no good reason for that approach, and that that approach is inherently bad.
[2]
In these states, for example, unanimous verdicts are not required in civil cases: Arizona (3 of 4), MacConnell v. Maricopa County Med. Soc’y, 724 P.2d 591 (Ariz. Ct. App. 1986); California (9 of 12), Valentine v. Baxter Healthcare Corp., 81 Cal. Rptr. 2d 252 (Cal. Ct. App. 1999); Idaho (3 of 4), Idaho Const. art. I, § 7; Kansas (10 of 12), Kan. R. Civ. Proc. § 60-248; Michigan (5 of 6), Klanseck v. Anderson Sales & Serv., Inc., 356 N.W.2d 275 (Mich. Ct. App. 1984), aff’d, 393 N.W.2d 356 (Mich. 1986); Mississippi (9 of 12), Salter v. Watkins, 513 So.2d 569 (Miss. 1987); Missouri (9 of 12), Powell v. Norman Lines, Inc., 674 S.W.2d 191 (Mo. Ct. App. 1984); New Jersey (5 of 6), Walder, Sondak, Berkeley & Brogan v. Lipari, 692 A.2d 68 (N.J. Super. Ct. App. Div. 1997); New York (5 of 6), Schabe v. Hampton Bays Union Free Sch. Dist., 480 N.Y.S.2d 328 (N.Y. App. Div. 1984); Ohio (3 of 4), O’Connell v. Chesapeake & Ohio Ry. Co., 569 N.E.2d 889 (Ohio 1991); Texas (10 of 12), Tex. R. Civ. Proc. 292; and Wisconsin (5 of 6), Zintek v. Perchik, 471 N.W.2d 522 (Wis. Ct. App. 1991), overruled on other grounds by Steinberg v. Jensen, 534 N.W.2d 439 (Wis. 1995).
[3]
A party cannot claim to be prejudiced by a trial judge’s refusal to strike a particular juror for cause until that party has been forced to exhaust all of his or her peremptory challenges in removing that juror from the panel. See generally McGriff v. State, 232 Ga. App. 546, 546, 502 S.E.2d 482, 483 (1998).