Attorney duty to search Case.net for juror nondisclosure: Missouri Supreme Court Rule 69.025.

AuthorConstance, John
PositionCase note

Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (en banc) (per curiam).

  1. INTRODUCTION

    The term voir dire derives from the Latin phrase verum dicere, literally meaning "to speak the truth." (1) In American jurisprudence, voir dire has come to mean the pretrial questioning of venire members during which a judge or party is given the opportunity to ask the prospective jurors questions in an attempt to reveal their personal tendencies and possible biases. (2) Missouri courts have held that the right to a fair and impartial panel of twelve qualified jurors is the cornerstone of the judicial system. (3) As such, it is the duty of prospective jurors on voir dire examination to "fully, fairly, and truthfully answer all questions so that qualifications for service may be determined and challenges properly exercised." (4) Or, more simply, they must speak the truth.

    Yet, history has shown that jurors are often not wholly honest and forthcoming when answering questions during voir dire, despite being under oath. (5) one study of Illinois criminal trials found that almost one in five prospective jurors withheld information during questioning. (6) Within civil trials, a recurrent issue before Missouri courts is whether a prospective juror's nondisclosure of prior litigation has led to an unfair verdict. (7)

    Besides physically searching through thousands of court documents shelved in a clerk's office or waiting days for a response from an indexing bureau, disclosure during voir dire traditionally had been the only means by which a Missouri attorney could learn of a juror's prior litigation history. But with the advance of Internet technology and Missouri's subsequent implementation of an automated court record system through Case.net, Missouri attorneys now have a free and potentially easy means to search a prospective juror's litigation experience. (8)

    In an attempt to reduce the number of retrials granted due to juror nondisclosure, the Supreme Court of Missouri mandated in Johnson v. McCullough that counsel search prospective jurors' litigation history on Case.net and bring reasonable suspicion of juror nondisclosure to the trial court's attention prior to jury empanelment. (9) An official court rule explaining the requirement was issued shortly after the Johnson decision, and it became effective on January 1, 2011. (10)

    It is uncertain if Missouri trial courts can interpret the rule in a way that minimizes the burden on attorneys to perform a Case.net search while still maintaining the rule's purpose--averting the need for retrials due to juror nondisclosure of prior litigation experience. The rule explicitly requires attorneys to search a juror's litigation history on Case.net if they desire to preserve their clients' rights to post-trial relief for juror nondisclosure. (11) If attorneys have reasonable grounds to suspect juror nondisclosure after this search, they must bring the matter to the trial court's attention. (12) What the rule leaves unclear, however, is how exhaustive a Case.net search must be and how much evidence is needed to produce "reasonable grounds" for suspicion.

  2. FACTS AND HOLDING

    In April of 2008, following a unanimous jury verdict, the Circuit Court of Jackson County entered judgment in favor of Dr. J. Edward McCullough in a medical malpractice action brought by McCullough's former surgical patient, Phillip Johnson. (13) During voir dire, jurors were asked by Johnson's counsel, "Now not including family law, has anyone ever been a plaintiff or a defendant in a lawsuit before?" (14) While others answered affirmatively, venire member Maxine Mims remained silent. (15) Following the initial juror disclosures to the question, counsel asked the question again, "Now did I miss anyone here? I just want to make sure. No other people that have been, not including family law, a plaintiff or a defendant on any case? Let the record reflect that I see no additional hands." (16) Mims never raised her hand, and she was ultimately chosen to sit on the jury. (17) After six days of trial and forty minutes of deliberation, the jury found that Dr. McCullough had not breached the standard of care during Johnson's surgery. (18)

    Within forty-eight hours of the jury's verdict, Johnson's counsel searched Missouri's automated case record system on Case.net (19) and found that Mims had indeed been involved in numerous lawsuits unrelated to family law. (20) Mims had been party to a personal injury case, and she had been a defendant in multiple debt collection actions. (21) At least three of the lawsuits had been filed within two years of the February 2008 trial date. (22)

    Johnson filed a motion for new trial with the circuit court, alleging intentional juror nondisclosure due to Mims' failure to reveal her litigation history when asked during voir dire. (23) Following the motion, the trial court conducted a hearing. (24) Without an affidavit from Mims or any other witness testimony, the trial court granted Johnson's motion for new trial based solely upon Mims' prior litigation experience found on Case.net. (25) The court believed that the question posed by Johnson's counsel to the venire members regarding litigation history was "clear and unambiguous and that Mims' involvement in prior litigation was recent." (26) Therefore, the court found Mims' nondisclosure to be intentional and prejudicial, thereby warranting a new trial. (27)

    McCullough appealed the grant of the motion for new trial. (28) At the hearing and on appeal, Dr. McCullough argued that Johnson's post-trial motion for a new trial was not timely. (29) Put differently, Dr. McCullough argued that Johnson's counsel waived the right to a new trial by failing to investigate Mims' litigation history prior to the excusal of alternate jurors, as the information was readily available for review during the trial through Case.net. (30) The Missouri Court of Appeals, Western District, upheld the trial court's ruling that Mims' nondisclosure merited a new trial. (31) The court rejected the timeliness argument on the grounds that Missouri law did not support the position that "prior litigation experience must be raised before submission." (32)

    The Supreme Court of Missouri granted transfer. (33) The court upheld the trial court's grant of a new trial. (34) However, the court mandated that in future cases "a party must use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and present to the trial court any relevant information prior to trial." (35) Additionally, the court stated that it would establish a rule clarifying parties' research obligations. (36) That rule was announced on June 25, 2010 and went into effect on January 1, 2011. (37)

  3. LEGAL BACKGROUND

    The question of whether an attorney has a duty to investigate a venire member's prior litigation experience far predates the creation of Missouri's Case.net system and even the Internet itself. In the 1955 Supreme Court of Missouri case Woodworth v. Kansas City Public Service Co., which stemmed from the collision of an automobile with a streetcar in downtown Kansas City, Kansas, the defendant moved for a new trial after it was discovered that a juror had failed to disclose a prior claim involving himself and the defendant's streetcar company. (38) The plaintiff contended that a new trial was unwarranted because the defendant had in its business files the record of the juror's prior claim against the defendant. (39) The Supreme Court of Missouri held that even if a party moving for a new trial had access to information that would dispute a venire member's voir dire response, a new trial could be granted so long as there was no actual knowledge by the party of the juror's prior litigation. (40)

    In 1972, the Supreme Court of Missouri was again faced with juror nondisclosure in Rodenhauser v. Lashly. (41) During voir dire questioning, counsel for the defendant asked the panel: "Let me ask you, if you will, to raise your hand, those of you who have ever brought a suit for personal injuries, or received any money for personal injuries you had...." (42) Even though the question was asked multiple times and counsel for the plaintiff warned that juror nondisclosure could lead to a mistrial, venire member Marie Sikorski kept her hand down and was selected to the jury. (43) Following a jury verdict in favor of the plaintiff, the trial court granted the defense's motion for a new trial after Sikorski's past litigation was revealed. (44)

    On appeal before the Supreme Court of Missouri, the plaintiff conceded that under Missouri law a complaining party waived its right to object to juror voir dire nondisclosure only in instances of actual knowledge, but he asked the court to re-examine the law. (45) The plaintiff argued that the law should not allow counsel to "'sandbag' the court" and opposing parties by ignoring "readily available information during trial ... with the hope of obtaining a favorable verdict." (46) In this case, the plaintiff reasoned that Sikorski's prior litigation was "readily available" because opposing counsel could have retrieved it through the Claims Indexing Bureau within two days. (47)

    The Supreme Court of Missouri upheld the trial court's grant of a new trial, (48) but the opinion appeared to leave open the possibility that counsel could waive the right to move for a new trial for juror nondisclosure even if counsel had no actual pre-verdict knowledge of a juror's prior litigation history. The court noted,

    There is nothing in the record to support plaintiff's suggestion that the claims information was readily available to defendant's counsel and that defendant was 'sandbagging.' We also note that the cases which plaintiff cites as authority from other jurisdictions concern situations where ... the records of the claims were in the files of the complaining party or his counsel rather than the situation where they were available through...

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