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Taylor v. Magana10/5/2005
party, for it impairs his right to challenge.'" De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995) (quoting Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953)). To determine whether such misconduct warrants a new trial, a three-part test applies:
First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party's lack of diligence.
Id. (citation omitted). The parties agree that the first part of the test was satisfied in the case at bar.
Regarding the second part of the test, "a juror's nondisclosure need not be intentional to constitute concealment," because the impact remains the same, counsel is prevented from making an informed judgment regarding the composition of the jury and the utilization of his or her peremptory challenges. Roberts, 814 So. 2d at 343-344. However, attorneys must be mindful in this process to ask such questions in terms which an average citizen not exposed to a panoply of legal processes would be capable of understanding. Trial counsel must take special care during the interrogation process to explain in a lay person's terms all the types of legal actions which may be encompassed by the term "litigation," or other similar words commonly used by attorneys.
Id. at 344. To this end:
In order to establish concealment, the moving party must demonstrate, among other things, that the voir dire question was straightforward and not reasonably susceptible to misinterpretation. A juror's answer cannot constitute concealment when the juror's response about litigation history is ambiguous and counsel does not inquire further to clarify that ambiguity. Birch v. Albert, 761 So. 2d 355, 357 (Fla. 3d DCA 2000).
Tran v. Smith, 823 So. 2d 210, 213 (Fla. 5th DCA 2002). Overall, " nformation is considered concealed for purposes of the three part test where the information is 'squarely asked for' and not provided." Birch, 761 So. 2d at 358 (citations omitted).
Moving to the third part of the test, " he 'due diligence' test requires that counsel provide a sufficient explanation of the type of information which potential jurors are being asked to disclose." Kelly v. Cmty. Hosp. of the Palm Beaches, Inc., 818 So. 2d 469, 475 (Fla. 2002). This includes articulating the types of lawsuits or claims being inquired about in the layperson's language favored by Roberts. See Tran, 823 So. 2d at 213 n.1. Additionally, counsel is expected to make further inquiry about litigation history where pertinent and ask follow-up questions to clarify or obtain relevant information. See Birch, 761 So. 2d at 358.
Magana argues that the trial court's question "Everything else is no?" was not straightforward and was susceptible to misinterpretation, because it could refer to the remainder of the questions or the other two options within the current question (divorced and widowed). Because of these ambiguities, Magana asserts that Taylor's counsel was required to seek a clarification of Hill's answer in order for there to be concealment. Magana notes that Taylor's counsel did not seek to clarify Hill's responses and further questioning of Hill was not related to Hill's litigation experience. This lack of inquiry, Magana maintains, represented a lack of due diligence.
Taylor contends that the trial court erred by focusing on whether Hill's concealment of the lawsuit was purposeful because Roberts established that concealment need not be intentional to constitute misconduct. Additionally, Taylor asserts
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