Voir dire on damages without fear
A review of the statutes and decisions that protect your right to challenge for cause
Determining monetary damages is a central issue in every personal injury trial. Identifying and removing potential jurors who support fixed limits on damages or have preexisting biases against non-economic damages is essential in selecting a fair jury willing to follow governing law as set forth in CACI’s damage instructions. Just as defense counsel are interested to know if a prospective juror will award zero dollars if liability is not proven, plaintiffs’ counsel must be permitted to identify and challenge for cause any venire member who has hesitance in awarding damages in the full amount owed.
In recent years, defendants have increasingly sought in limine orders to impose prohibitions on a plaintiff’s right to question jurors about their willingness to award large damage verdicts or specific amounts of money if the evidence and law support such a result.
All parties have a constitutional right to a thorough attorney-conducted voir dire. Article I, section 16 of the California Constitution guarantees the right to trial by jury, and unbiased jurors are an inseparable part of that right. (People v. Hughes (1961) 57 Cal.2d 89, 95.) Plaintiffs and defendants are each entitled to engage in a “liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.” (Code Civ. Proc. § 222.5 [emphasis added]). The form and subject matter of these questions can focus on any legal issue in the case.
Biased prospective jurors who favor awarding less than the full, fair and complete damages warranted by the evidence must be identified to avoid the possibility of a jury that does not follow applicable law. “A litigant suffers prejudice when, over his protest, the court impanels a juror whose state of mind requires the challenging party to introduce evidence in excess of a preponderance to such extent as will overcome antecedent prejudices of the juror.” (Leibman v. Curtis (1955) 138 Cal.App.2d 222, 226.)
Strongly held beliefs
Whether a juror has personal, religious or philosophical reason for declining to award damages is obviously relevant. For more than one hundred years California courts have acknowledged that any juror who is prejudiced against personal-injury lawsuits is not impartial and may be challenged for cause. (Fitts v. Southern Pac. Co. (1906) 149 Cal. 310 [bias in favor of defendants in negligence cases, based on the belief that many accidents are probably caused by the negligence of plaintiffs]; Quill v. Southern Pac. Co. (1903) 140 Cal. 268 [prejudice that personal injury cases would require stronger proof than ordinary cases].)
The purpose of voir dire is to assist counsel in the intelligent exercise of both peremptory challenges and challenges for cause. (See Code Civ. Proc., § 222.5; California Rules of Court, rule 3.1540(b); Kelly v. Trans Globe Travel Bureau, Inc. (1976) 60 Cal.App.3d 195, 203; Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 324.) In the context of questioning jurors about their ability to award specific sums in voir dire, courts have expressly found that doing so is proper. (Fernandez v. Jimenez (2019) 40 Cal.App.5th 482.) The California Judges Benchbook: Civil Proceedings-Trial, describes the holding in Fernandez v. Jimenez (2019) 40 Cal.App.5th 482 as follows:
In a recent case, the court held that the plaintiff’s attorney in a wrongful death action did not improperly precondition the jurors during voir dire to award inflated damages by telling them that the plaintiffs may be asking for ‘hundreds of millions of dollars collectively for four of them’ and asked whether that shocked any of the jurors. (Fernandez v. Jimenez, supra, 40 Cal.5th at 493-494.) The court noted that jurors may be informed of the damages a plaintiff seeks.
(See Proper and Improper Questions:, Cal. Judges Benchbook Civ. Proc. Trial § 3.52.)
The Rutter Group Treatise on Trials also recognizes that questions about specific dollar amounts are appropriate:
(4) [5:311] Other matters indicating possible bias, prejudice, etc.: Jurors may be questioned on any matter that might expose bias, prejudice or other ground for a challenge for cause or upon which prudent counsel would base a peremptory challenge. [See People v. Williams (1981) 29 Cal.3d 392, 402];
[5:312] Ability to award damages: Plaintiff’s attorneys are usually permitted to question prospective jurors as to their ability to return a large verdict if supported by the evidence. (Some individuals may be incapable of rendering a $1 million dollar verdict under any circumstances).
“…and can you award?”
In Beagle v. Vasold (1966) 65 Cal.2d 166, 170, the California Supreme Court held that it was error for a trial court to preclude plaintiff’s counsel from asking the jury to award the plaintiff a specific sum of general damages in final argument. “It has long been a courtroom practice of attorneys in this state to tell the jury the total amount of damages the plaintiff seeks, and no questioning of the technique has come to our attention.” (Id. at 172.) Given that the plaintiff is permitted to ask the jury for a specific sum in argument, he or she is also entitled to voir dire as to whether any juror would be unable – if the evidence supported the sum – to award that sum.
Defense counsel often use hyperbolic threats of large verdicts to limit appropriate voir dire. Anecdotal stories about “anchoring” large verdicts in voir dire have become part of the defense playbook. But there is no judicial authority supporting these arguments or the relief sought. Of course, when defense counsel question jurors about their ability to send the plaintiff home with nothing, they argue such questioning is necessary to identify jurors who should be challenged for cause as biased!
In Fernandez, plaintiff’s counsel asked the jury during voir dire if they could award “hundreds of millions of dollars” in a wrongful death case. (Fernandez, at p. 493.) One juror offered up the specific amount of $200,000,000. The appellate court, in considering whether there was misconduct on the part of the attorney in discussing numbers, specifically found that “this was not improper preconditioning. Jurors may be informed of the damages a plaintiff seeks.” (Id. at 494.) With proper jury instructions provided on damages, there was no prejudice, and no issue of inflaming the jury’s passions. (Ibid.)
Any juror that states he or she could not award the plaintiff the sum of damages that the plaintiff proves – because the amount exceeds a preconceived ceiling – must be struck for cause.
Code of Civil Procedure, section 225, provides:
A challenge is an objection made to the trial jurors that may be taken by any party to the action, and is of the following classes and types:
. . .
(b) A challenge to a prospective juror by either:
(1) A challenge for cause, for one of the following reasons:
(A) General disqualification – that the juror is disqualified from serving in the action on trial.
(B) Implied bias – as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror.
(C) Actual bias – the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.
California law has held for 60 years that “it is prejudicial error to deny a good challenge for cause and compel the challenger to use one of his peremptories upon a particular juror where that robs him of a challenge which he would have used upon another juror who remained in the box.” (Leibman v. Curtis (1955) 138 Cal.App.2d 222, 226.) A litigant suffers “irreparable prejudice” in such a circumstance. (Id., see also Lombardi v. California St. Ry. Co. (1899) 124 Cal. 311, 314.) If a prospective juror cannot be questioned about the inability to award any dollar amount the evidence sufficiently proves, then that juror has a bias that is contrary to the law and cannot be permitted on the jury.
To prevent defense attempts to prohibit questioning jurors about specific numbers during voir dire, counsel should file a motion in limine requesting an order that: 1) allows Plaintiffs’ counsel to discuss specific sums of money damages during voir dire, and 2) strikes for cause any juror who states they cannot award a sum of damages even if the evidence proves it.
Mike Kelly is the senior shareholder at Walkup Melodia Kelly and Schoenberger in San Francisco. He has concluded more than 225 cases where the recovery by his client exceeded $1 million. Honored as the Cal-ABOTA 2014 California Trial Lawyer of the Year, he is a member of the Inner Circle, ACTL and IATL. He has been selected as a Nor. Cal. Super Lawyers “Top Ten” honoree for the last eight years. He has taught courtroom advocacy skills across the U.S. and in Eastern Europe, South America, Japan, Scotland and Ireland.
Ian Head is current 2L at UC-Hastings Law School in San Francisco. He obtained his undergraduate degree at the University of North Carolina – Chapel Hill. He was a summer associate at Walkup Melodia Kelly & Schoenberger in 2022 during which time he assisted with briefing the scope of permissible voir dire in a Superior Court trial.
2023 by the author.
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