Preview
Filing # 52032530 E-Filed 02/03/2017 12:04:22 PM
IN THE CIRCUIT COURT, OF THE 17™
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. CACE-14-016655 DIV. 02
DEBRA HINES,
Plaintiff,
vs.
HOMEOWNERS CHOICE PROPERTY &
CASUALTY INSURANCE COMPANY, INC.
a Florida Corporation,
Defendant.
/
DEFENDANT’S MEMORANDUM OF LAW REGARDING VOIR DIRE
COMES NOW Defendant, HOMEOWNERS CHOICE PROPERTY & CASUALTY
INSURANCE COMPANY, by and through their undersigned counsel, and hereby files this
Memorandum of Law regarding Voir Dire, and states as follows:
I. PARTIES ARE ENTITLED BY RIGHT, TO A FAIR AND IMPARTIAL JURY;
IF THERE IS ANY REASONABLE DOUBT ABOUT A JUROR'S ABILITY TO
BE FAIR, THE JUROR MUST BE STRUCK FOR CAUSE.
The fair and impartial jury, as guaranteed by the Sixth Amendment to the United States
Constitution and Section 11 of the Florida Constitution, is crucial to the administration of justice
under our legal system. Singer v. State, 109 So.2d 7 (Fla. 1959). Early Florida Supreme Court
decisions heralded the necessity of a fair and impartial jury, as judges initiated an effort to
safeguard the integrity of the jury trial. See O'Connor v. State, 9 Fla. 215, 222 (Fla. 1860)
("Jurors should, if possible, be not only impartial, but beyond even the suspicion of partiality.").
In Williams _v. State, the court stated, "To render the right to an impartial jury
meaningful, cause challenges must be granted if there is a basis for any reasonable doubt as to
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 2/3/2017 12:04:21 PM.****the juror's ability to be fair." 638 So.2d 976, 978 (Fla. 4th DCA 1994) (emphasis added) (citing
Hill v. State, 477 So.2d 553 (Fla. 1985), cert. denied 485 U.S. 993 (1988); Singer v. State, 109
So.2d at 23). The Williams court went on to state:
Because impartiality of the finders of fact is an absolute prerequisite to our
system of justice, we have adhered to the proposition that close cases involving
challenges to the impartiality of potential jurors should be resolved in favor-of
excusing the juror rather than leaving doubt as to impartiality.
Williams, 638 So.2d at 978 see also, ¢.g., Nash _v. General Motors Corp., 734 So.2d 437, 439
(Fla. 3rd DCA 1999) (applying reasonable doubt standard in civil case; stating, "When any
reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an
impartial verdict based solely on the evidence submitted and the instructions on the law given to
her by the court, she should be excused.").
To ensure the impartiality of each juror, Rule 1.431(c) of the Florida Rules of Civil
Procedure provides that an individual juror may be challenged for cause for bias or prejudice.
The juror's voir dire responses are the fundamental source for grounds of impartiality. The
testimony or opinion derived from the potential juror is relevant, competent, and primary
evidence on the issue of impartiality. 33 Fla. Jur.2d Juries § 68.
A. A juror's assurance that he or she "could be fair" or would "try to be fair"
does not control.
A juror's sincere belief that he is "a fair person" or the juror's assurance that he or she is
able to be impartial does not control. The Court, not the individual juror, is the judge of the
juror's freedom from bias. See Gibbs v. State, 193 So.2d 460, 462 (Fla. 2d DCA 1967). In
reversing a trial court's denial of a cause strike, the court in Williams v. State, 638 So.2d 976
(Fla. 4th DCA 43), acknowledged that, "Indeed, the juror in his own mind might even believe he
could be ‘fair and impartial’." Id. at 979. Likewise and because "most everyone considersthemselves to be a ‘fair person", such statements, even if sincere, do not control the analysis of a
reasonable doubt as to such. Nash v. General Motors Corp., 734 So.2d 437, 440 (Fla. 3rd DCA
1999) (reversing refusal to grant cause strike). See also Sikes v. Seaboard Coast Line R.R., 487
So.2d 1118 (Fla.'Fla. Stat. § 913.03 governs cause challenges in criminal actions.1st DCA 1986)
(prospective juror who admitted that she didn't think she would be fair but who promised the trial
judge that she would "try to be fair" should be dismissed for cause); Leon y. State, 396 So.2d
203, 205 (Fla. 3rd DCA 1981) (juror who did not know if she could be fair should have been
excused for cause).
If there is a chance that, because of feelings or opinions that a juror carries, he or she may
not be totally fair and impartial, that juror should be excused for cause. Club West v. Tropigas of
Fla., Inc., 514 So.2d 426 (Fla. 3rd DCA 1987) (juror who had preconceived opinion about a
defendant in a civil case should have been excused for cause), cert. denied, 523 So.2d 579 (Fla.
1988). Moreover, "[A] close case should be resolved in favor of excusing the juror rather than
leaving a doubt as to his or her impartiality." Sydleman v. Benson, 463 So.2d 533 (Fla. 4th DCA
1985).
B. Rehabilitation is often insufficient once a juror has expressed partiality.
Florida appellate courts have repeatedly held that "a juror is not impartial when one side
must overcome preconceived opinions in order to prevail." Price v State, 538 So.2d 486, 489
(Fla. 3rd DCA 1989). A juror's statement that he can set aside his feelings or opinions and render
a verdict based on the law and the evidence is not conclusive if it appears from other statements
made by him that he is not possessed of a state of mind that will enable him to do so. Somerville
v. Ahuia, 902 So. 2d 930 (Fla. 5th DCA 2005) "Potential jurors' responses to questions by the
court or counsel in an effort to rehabilitate him or her, after having admitted to harboring somebias or prejudice, that they can set aside those prior admitted feelings is not determinative.");
Singer v. State, 109 So.2d 7 (Fla. 1959); Longshore v. Fronrath Chevrolet, Inc., 527 So.2d 922,
924 (Fla. 4th DCA 1988) ("[Juror's] connections with the appellee, coupled with her initial
statement that she would ‘try' to be impartial, were not overcome by her subsequent statements
that she could be fair."); Ortiz v. State, 543 So.2d 377 (Fla. 3rd DCA 1989) Club West, Inc. v.
Tropigas of Fla., Inc., 514 So.2d 426 (Fla. 3rd DCA 1987), cert. denied, 523 So.2d 579 (Fla.
1988). In Johnson v. Reynolds, 97 Fla. 591, 121 So. 793, (Fla. 1929) the Florida Supreme Court
stated:
It is difficult, if not impossible, to understand the reasoning which leads to the
conclusion that a person stands free of bias or prejudice who having voluntarily
and emphatically asserted its existence in his mind, in the next moment under
skillful questioning declares his freedom from its influence. By what sort of
principle is it to be determined that the last statement of the man is better and
more worthy of belief than the former?
Id. at 796.
Thus, if a juror makes a statement sufficient to cause doubt as to his/her ability to render
an impartial verdict, the fact that the trial judge or opposing counsel extracts a commitment that
the juror will be fair or will try to be fair is insufficient. See Price v. State, 538 So.2d 486, 488-89
(Fla. 3rd DCA 1989) (it was error for trial court not to excuse a juror for cause because of
uncertainty surrounding her impartiality). "A juror's later statement that she can be fair does not
erase a doubt as to impartiality[.]" Peters v. State, 874 So.2d 677, 679 (Fla. 4th DCA 2004)
(juror's rehabilitation was insufficient when, in response to court's leading question about
whether she could set aside her prior experiences and be fair, juror said "I think I could"). See
also Goldenberg v. Regional Import & Export Trucking Co., Inc., 674 So.2d 761, 764 (Fla. 4th
DCA 1996) (juror's statement that she was a "fair person" was not an unequivocal statement that
she could be fair and impartial; "[E]fforts at rehabilitating a prospective juror should always beconsidered in light of what the juror has freely said before the salvage efforts began."); Leon v.
State, 396 So.2d 203, 205 (Fla. 3 DCA 1981) (statement that juror will return a verdict according
to the evidence is not determinative); Plair_v. State, 453 So.2d 917, 918 (Fla. Ist DCA 1985)
(where the prospective juror vacillates between assertions of partiality and impartiality, a
reasonable doubt has been created which would require that the juror be excused); Jaffe _v.
Applebaum, 830 So.2d 136 (Fla. 4th DCA 2002) (holding that, although no rehabilitation was
actually done, any attempt to rehabilitate juror would have been futile in light of juror's
responses to. prior questions that demonstrated his bias). In Fazzalan v City of West Palm Beach,
the court held:
The jurors' subsequent change in their answers, arrived at after further questioning
by appellee's counsel, must be reviewed with some skepticism. The assurance of a
prospective juror that the juror can decide the case on the facts and the law is not
determinative of the issue of a challenge for cause[.]
608 So.2d 927, 929 (Fla. 4th DCA 1992) rev. denied, 620 So.2d 760 (Fla. 1993),disapproved on
other grounds, Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89 (Fla.1995).
Appellate courts have repeatedly reversed trial courts' attempts to rehabilitate prospective
jurors who initially expressed partiality, holding that such efforts were insufficient to remove
reasonable doubt as to that prospective juror's impartiality. See Sikes v. Seaboard Coast Line
R.R., 487 So.2d 1118 (Fla. Ist DCA 1986) (juror who said she would "try to be fair" was not
sufficiently rehabilitated). There are no known cases reversing a trial judge's striking a venire
person for cause, while there is abundant case law reversing a trial judge's refusal to strike.
Appellate courts are particularly concerned when the trial court attempts to rehabilitate
the prospective juror, especially through the use of leading questions. A "juror who is being
asked leading questions (by the court) is more likely to 'please' the judge and give the rather
obvious answers indicated by the leading questions[.]" Price v. State, 538S0.2d 486, 489 (Fla.3rd DCA 1989) Thus, "It becomes even more difficult for a juror to admit partiality when the
court conducts the questioning." Williams v. State, 638S0.2d at 978. In Hagerman v. State, 613
So.2d 552, 553 (Fla. 4th DCA 1993) the court held that the trial judge erred in not excusing a
potential juror for cause when the sole rehabilitation was from leading questions by the trial
judge.
Although the process of rehabilitation is fraught with uncertainty, successful
rehabilitation requires that—in response to questioning from counsel or to non-leading questions
from the court—the juror make an unequivocal statement that he or she will set aside any bias or
prejudice, start from a clean slate, and render an impartial verdict based on the evidence and the
law in the case. Compare Overton v. State, 801 So. 2d 877, 894 (Fla. 2001) (upholding trial
court's denial of a cause challenge to a juror who said he would "start from a clean slate" and
follow the law) with Williams v. State, 638 So.2d 976 (Fla. 4th DCA 1994) (holding that juror
should have been dismissed for cause; stating, "Despite the juror's subsequent statement that 'T'll
be impartial because that's my character,’ he never expressed unequivocally that he could be fair
and impartial in this case. He stated only that he hoped he could." (emphasis added)). The court
in Somerville v. Ahuja elaborated:
The ultimate test is whether a juror can lay aside any bias or prejudice and render
a verdict solely upon the evidence presented and the instructions on the law given
by the court. A juror should be able to set aside any bias or prejudice and assure
the court and the parties that they can render an impartial verdict based on the
evidence submitted and the law announced by the court.
902 So.2d 930, 935 (Fla. Sth DCA 2005). As discussed above, a simple statement that the juror
will be fair or try to be fair is not enough. Additionally, a juror's silence to a question asked of
the entire panel is insufficient rehabilitation. See Bell v. State, 870 So.2d 893, 895 (Fla. 4th DCA
2004).Thus, in summary, any appearance of partiality is usually sufficient to strike a
prospective juror for cause. Rehabilitation efforts are fraught with difficulty. Carratelli v State,
832 So.2d 850 (Fla. 4th DCA 2002) ("The rehabilitation of prospective juror is a tricky business
that often leads to reversal.").
Il. PARTIES HAVE WIDE LATITUDE TO EXAMINE JURORS, INCLUDING
ASKING HYPOTHETICAL QUESTIONS ABOUT LEGAL DOCTRINE AND
QUESTIONS RELATING TO PRECONCEIVED OPINIONS.
It has long been held in this state that parties have wide latitude to examine jurors for the
purpose of ascertaining the qualifications of persons drawn as jurors and whether they would be
absolutely impartial in their judgment. See Fla. R. Civ. P. 1.431(b) (1999); Cross v. State, 89 Fla.
212, 216 (Fla. 1925) ("a very wide latitude of examination ... is allowable and indeed often
necessary to bring to light the mental attitude of the proposed juror[.]"). Therefore, the "length
and extensiveness" of jury selection "should be controlled by the circumstances surrounding the
jurors’ attitudes in order to assure a fair and impartial trial by persons whose minds are free from
all interest, bias or prejudice." Barker v. Randolph, 239 So.2d 110, 112 (Fla. Ist DCA 1970) see
also Gibbs v. State, 193 So.2d 460, 462 (Fla. 2d DCA 1967) (stating that voir dire should be "so
varied and elaborated as the circumstances surrounding" the potential jurors); Cross, 89 Fla. at
216 (stating that jurors should be "absolutely impartial in their judgment.").
In Lavado v. State, 492 So.2d 1322 (Fla. 1986), the Florida Supreme Court held that it
was improper for the trial court to refuse the defendant's request to ask prospective jurors about
their willingness to accept one of the defenses. The Court adopted the dissenting opinion of
Judge Pearson of the Third District Court of Appeal in its entirety as its majority opinion. Judge
Pearson had stated:
The scope of voir dire, therefore, "should be so varied and elaborated as the
circumstances surrounding the juror..." Thus, where a juror's attitude about aparticular legal doctrine (in the words of the trial court, "the law") is essential to a
determination of whether challenges for cause or peremptory challenges are to be
made, it is well settled that the scope of voir dire properly includes questions
about and references to that legal doctrine even if stated in the form of
hypothetical questions.
Lavado v. State, 469 So.2d 917, (Fla. 3rd DCA 1985) (Pearson, J., dissenting) (internal citations
omitted) (emphasis added). See also Moses _y. State. 535 So.2d 350 (Fla. 4th DCA 1988)
(recognizing that the rationale of Lavado is not limited to legal defenses but encompasses inquiry
into bias that goes to the heart of defendant's case). Compare Williams v. State, 744 So.2d 1103
(Fla. 3d DCA 1999) (in a case in which eyewitness misidentification was the sole defense, the
trial court's restriction of counsel's questioning jurors about their prior experiences in
misidentifying people was upheld; the appeals court distinguished Lavado, because the Williams
trial judge asked the panel about misidentification and because a juror's experience with
misidentification was distinct from whether a juror could accept the defense).
Accordingly, hypothetical questions that correctly state the applicable law are proper.
See. e.g.,Pait v. State, 112 So.2d 380, 383 (Fla. 1959) ("A hypothetical question making a correct
reference to the law of the case to aid in determining the qualifications or acceptability of a
prospective juror may be permitted[.]"). Hypothetical questions incorporating evidence at trial
and asking how jurors would rule and questions regarding the types of verdicts under a given set
of circumstances are not proper. Tampa Elec. Co. v. Bazemore, 85 Fla. 164, 96 So. 297 (Fla
1932), Smith v. State, 253 So.2d 465, 470-71 (Fla. Ist DCA 1971) Guror may not be asked about
his attitude toward a witness, especially when it is the primary witness; however, it’s proper to
ask whether a juror can follow the court’s instructions as to the credibility of witnesses);
Hendrick v. State, 237 So.2d 555, 556 (Fla. 2 DCA 1971 (voir dire questions asking what a
verdict would be based on a hypothetical set of facts are improper).A. Areas of Inquiry on Voir Dire
Rule 1.431(c) of the Florida Rules of Civil Procedure governs cause challenges. The rule
states, in pertinent part:
On motion of any party the court shall examine any prospective juror on oath to
determine whether that person is related to any party or to the attorney of any
party within the third degree or is related to any person alleged to have been
wronged or injured by the commission of the wrong for the trial of which the
juror is called or has any interest in the action or has formed or expressed any
opinion or is sensible of any bias or prejudice concerning it or is an employee or
has been an employee of any party within 30 days before the trial. A party
objecting to the juror may introduce any other competent evidence to support the
objection. If it appears that the juror does not stand indifferent to the action or any
of the foregoing grounds of objection exists or that the juror is otherwise
incompetent, another shall be called in that juror's place.
Fla. R Civ. P. 1.431(¢)(1).
In addition to the areas of questioning specifically enumerated in Rule 1.431, jurors can
be questioned about the following areas and challenged for cause when appropriate:
1,
Whether a juror has reservations about awarding money damages for the death
of a loved one and disapproves of personal injury or malpractice lawsuits.
Nash v. General Motors Corp., 34 So.2d 437 (Fla. 3rd DCA 1999) (reversing
denial of cause strike for juror who had prejudices about personal injury lawsuits);
Somerville v. Ahuja; 902 So.2d 930, 933 (Fla. 5th DCA 2005) (juror who had bad
feelings about malpractice suits based on conversations with physician uncle and
friend in medical school should have been excused for cause); Sisto _v. Aetna
Casualty & Surety Co., 689 So.2d 438 (Fla. 4th DCA 1997) (trial court abused its
discretion by prohibiting counsel from asking questions about jurors’ views on
damages, including non-economic damages; court’s general questions about
whether jurors would follow the law did not cure prejudice).
Whether a juror can follow the law on pain and suffering. Pacot v. Wheeler; 458
So.2d 1141 (Fla. 4th DCA 2000) (reversing denial of cause strike for juror who
said she would have "difficulty" following the law).
Whether a juror has negative attitudes toward lawyers or the legal system.
Levy v. Hawk's Cay, Inc., 543 So.2d 1299 (Fla. 3rd DCA 1989) (jurors with
negative attitudes toward the legal system resulting from unfavorable experiences
due to lawsuits being filed against them or members of their family and that those
predispositions would result in bias should have been excused for cause), rev.
denied, 553 So.2d 1165 (Fla. 1989); Frazier v. Wesch, 913 So. 2d 1216 (Fla. 4th
DCA 2005) (juror who stated, I don't care for lawyers much at all, who suggestedthat he would hold the plaintiff to a "clear and obvious" standard of proof, and
who indicated that plaintiffs in general were "looking for easy money" and "trying
to cheat the system" to "make an easy buck" should have been excused for cause).
Whether a juror has a friendship or economic relationship with a party or its
counsel. Johnson v. Reynolds 97 Fla. 591, 121 So. 793, (Fla. 1929) holding that a
friendly relationship with a party is grounds for a cause challenge); Canty v. State,
597 So.2d 927, 928 (Fla. 3 DCA 1992) ("Nothing can raise more doubts about a
juror's impartiality than a previous contact with a party, or their attomey."); Sikes
v. Seaboard Coast Line R.R., 487 So.2d 1118, 1119 (Fla. Ist DCA 1986) (refusal
to excuse juror whose son was best friend of counsel for defendant and who said
this might lead her to give more weight to the defense was reversible error);
Longshore v. Fronrath Chevrolet, 527 So.2d 922 (Fla. 4th DCA 1988) (juror
whose daughter worked for defendant and who thought defendant's owner was a
"good guy" should be excused for cause despite fact that she said he would "try"
to be impartial); Mitchell v. CAC-Ramsey Health Plans, Inc, 719 So.2d 930 (Fla.
3' DCA 1998) (juror who was member of defendant health care plan and who had
been treated at two of its clinics could have been struck for cause).
Whether a juror is or was an employee of one of the parties or works for the
same employer as one of the parties. Boca Teeca Corp, v.] Palm Beach County,
291 So.2d 110 (Fla. 4th DCA 1974) (employee juror is subject to challenge for
cause); Martin v. State Farm, 892 So.2d 11 (Fla. 5th DCA 1980) (juror employed
by hospital where defendant doctor was president, and chief of staff should be
dismissed for cause); Hagerman v. State, 613 So.2d 552 (Fla. 4th DCA 1993)
(failure to exclude juror who worked in the state attorney's office and knew the
assistant state attorney constituted an abuse of discretion).
Whether a juror believes that a rendition of a verdict for one of the parties
would have any influence on his/her personal life, especially with regard to
insurance and the premiums he/she has to pay. Purdy v. Gulf Breeze Enter., Inc.
403 So.2d 1325, 1330 (Fla. 1981) ("[ T Jhe impact of monetary awards. in
negligence cases upon automobile liability insurance rates may be proper subject
for exploration upon voir dire examination of a jury panel." (internal citations
omitted)).
Whether a juror owned stock in a defendant corporation. Club West, Inc. v.
Tropigas 514 So.2d 426 (Fla, 3rd DCA 1987) (said juror is subject to a cause
challenge), cert. denied, 523 So.2d 579 (Fla. 1988).
Whether something about the juror's employment "may" affect her decision in
the case. Ortiz v. State 543 So.2d 377 (Fla. 3rd DCA 1989) (this is sufficient to
disqualify a juror for cause).
Whether a juror has life experiences that would influence her decision. See
Tizon v. Royal Caribbean Cruise Line, 645 So, 2d 504 (Fla. 3rd DCA 1994) Gurorwho stated she would be influenced by the fact hat her husband and others she
knew had successfully recovered from the same surgery the plaintiff had
undergone and she would be influenced by the fact that her husband was a
physician who had been sued should have been excused for cause, despite fact
that she later said she would try to be fair).
10. Whether a juror could put a dollar value on loss of companionship. Gootee v.
Clevinger, 778 So.2d 1005, 1008-09 (Fla. 5th DCA 2000) (holding that juror who
could not put dollar value on loss of companionship without "a lot more education
and many more convictions about the worth of a human life" should have been
removed for cause because she could not perform her juror's responsibility).
11. Whether a juror has already formed or expressed an opinion on issues involved
in a case based on newspaper articles, hearsay, or other previous experience or
information. See Singer _v. State_109 So.2d 7, 19 (Fla. 1959) (juror who had
preconceived opinion, and prejudice should have been excused for cause); see
also Ortiz v. State 543 So.2d 377,378 (Fla. 3rd DCA 1989) (holding that trial
court abused its discretion in denying cause challenge to venireperson who had
read newspaper accounts and made conclusions) Club West, Inc. v. Tropigas
of Fla., Inc., 514 So.2d 426 (Fla. 3rd DCA 1987) (juror who had preconceived
opinion about a defendant in a civil case should have been, excused for cause),
cert. denied, 523 So.2d 579 (Fla. 1988); Hill v. State, 477 So.2d 553 (Fla. 1985)
("A juror is not impartial when one side must overcome a preconceived opinion in
order to prevail"); Smith v. State 463 So.2d 542, 543 (Fla. 5th DCA 1985) (juror
who was "not sure" she could listen to the evidence and court instructions free
from the influence of what she had previously seen or heard should have been
excused); Somerville v. Ahuja, 902 So.2d 930, 933 (Fla. 5th DCA 2005) (juror
who had bad feelings about malpractice suits based on conversations with
physician uncle and friend in medical school should have been excused for cause;
juror could not unequivocally state she would set those feelings aside)
12. Whether a juror knows about claims concerning the “insurance crisis" or
"lawsuit crisis". Bell v. Greissman, 902 So.2d 846 (Fla. 4th DCA 2005) (it was
error to deny challenge for cause to juror who was skeptical about tort claims in
general and who made comments reflecting strong bias arising out of previous
personal experience); Sutherlin v. Fenenga, 810 P.2d 353, 361-62 (N.M. Ct. App.
1991) (party may inquire about juror's knowledge about the "insurance crisis"
upon showing that members of jury may have been exposed to media accounts
about effect of jury awards on insurance costs); Babcock v. Northwest Memorial
Hosp _767 S.W.2d 705 (Tex. 1989) (party should have been allowed to question
jurors about a "lawsuit crisis").
Ill. IT IS REVERSIBLE ERROR TO FORCE A PARTY TO USE A PEREMPTORY
CHALLENGE ON A PERSON WHO SHOULD HAVE BEEN EXCUSED FOR
CAUSE.Florida and most other jurisdictions adhere to the general rule that "It is reversible error
to force a party to use a peremptory challenge on persons who should have been excused for
cause, provided the party subsequently exhausts all of his or her peremptory challenges and an
additional challenge is sought and denied." Gootee v. Clevinge 778 So.2d 1005, 1009 (Fla. 5th
DCA 2000). In Hill v. State, 477 So.2d 553 (Fla. 1985). The Florida Supreme Court noted that
failure to dismiss a juror for cause when appropriate abridges a party's right to peremptory
challenges by reducing the number of those challenges available to him or her. See id, at 556.
Thus, it is "exceedingly important” that trial courts ensure that jurors are unbiased. Id.
In order to preserve for appellate review the refusal to grant a challenge for cause, a party must
do all of the following: (a) exhaust all remaining peremptory challenges; (b) make a request for
additional peremptory challenges that is denied; and (c) identify to the trial court a particular
juror who is ultimately empanelled whom the party would have also struck had peremptory
challenges not been exhausted.'
IV. LANGUAGE SUGGESTING THE NEED FOR A CAUSE STRIKE.
The following cases illustrate statements by members of the venire which courts
have held require they be excused for cause:
' See, e.g., Grieferv. DePietro 625 So.2d 1226, 1228 (Fla. 4th DCA 1993) is necessary not only to exhaust
all the remaining challenges and for request additional peremptory challenges, but to identify to the trial
court a particular objectionable juror whom the party would have' also struck had peremptory challenges
not been exhausted."); Hill v. State 477 So.2d 553 (Fla.1985) (stating that it is error to force a party to
use peremptory challenges on a juror who should have been excused for cause where party exhausted all
peremptory challenges and addition | challenges were sought and denied); Dardar v. Southard Distrib. of
Tampa; 563 So.2d 1112 (Fla. 2d DCA1990) (stating that, if a party exhausts his peremptory challenges
but does not request additional challenges, any error in the court's denial of that party's challenges for
cause is not preserved), Metro, Dade County v. Sims Paving Corp., 576 So.2d 766, 767 (Fla. 3d DCA
1991) (holding that the trial court must empanel an objectionable juror in order to demonstrate.
prejudice); Taylor v. Pub. Health Trust, '546 So.2d 733, 733 (Fla. 3rd DCA 1989) (holding there was no
reversible error, because "counsel did not request an additional challenge nor indicate in any way that
she was dissatisfied with any member of the jury which tried the case"). Compare Frazier v. Wesch, 913
So.2d 1216 (Fla. 4% DCA 2005) (no error where plaintiff requested peremptory strike to excuse juror who
sat as alternate but who was excused before the jury retired to deliberate).A venire person who admits a party would start out with a strike or half strike
against him should be excused for cause. Club West, Inc. v Tropigas of Fla., Inc.;
514 So.2d 426, 428 (Fla. 3d DCA 1987), cert. denied, 523 So.2d 579 (Fla. 1988)
(holding that trial court abused its discretion in refusing to excuse for cause a
juror who admitted that, because of her prior favorable and profitable experiences
with a defendant, the plaintiff "may" be starting out with "one strike against him",
despite her later statement she could be impartial); Jaffe v. Applebaum 830 So.2d
136 (Fla. 4th DCA 2002) (in medical malpractice action involving allegedly
negligent cosmetic procedure, juror who admitted he owed his life to his surgeon
and plastic surgeon, and because of such experience, plaintiff/patient would have
started out with a half strike against her should have been struck for cause).
A venireman who admits a potential bias, or who admits he probably would be
prejudiced or would probably give a bit more weight to what opposing counsel
or certain witnesses say should be excused for cause. Bell v State; 870 So.2d 893
(Fla. 4th DCA 2004) (reversing trial court's refusal to grant defendant's cause
challenge to venireman who admitted a potential bias by stating "If I had a bias it
would be against the defendant," and later responded by saying "I'd try not to" and
"I would give it my best shot" when the judge attempted to rehabilitate him);
Sikes _v. Seaboard Coast Line R.R. 487 So.2d 1118 (Fla. Ist DCA 1986)
(reversing trial court's failure to strike for cause a venire person who admitted that
he would "probably" "give a little bit more weight to what t y [opposing counsel]
say as opposed to what I say"); Imbimbo v. State 555 So.2d 954 (Fla. 4th DCA
1990) (juror who admitted she "probably" would be prejudiced, even though she
then asserted she "probably" could follow the judge's instructions should be struck
for cause); Somerville v. Ahuja 902 So.2d 930, 933-34 (Fla. Sth DCA 2005)
(juror who admitted that he "probably" would bring back a verdict for the defense
should have been excused for cause, despite the fact that the court stated that
counsel could "probably get anybody on that jury to say that"); Slater v. State 910
So.2d 347 (Fla. 4th DCA Sept. 14, 2005) (juror who stated during voir dire that he
believed the testimony of a police officer carried a little more weight than that of
a lay person should have been stricken for cause).
A venire person who states she could not say she would be strictly impartial, is
not a hundred percent sure she could be fair, or cannot affirmatively say she
would follow the court's instructions should be excused for cause. Gootee v.
Clevinge, 778 So.2d 1005 (Fla. 5th DCA 2000) (reversing a trial court's failure to
strike for cause a venire person who really could not say she would be strictly
impartial despite her later statement that she "can be fair whether she likes it or
not"); Williams v. State, 638 So.2d 976 (Fla. 4th DCA 1994) (reversing a trial
court's refusal to excuse for cause a venire person who conceded by nodded head
to counsel's question, "You're not a hundred percent sure that you could be fair
and impartial, is that correct?" and who stated I hope that I can" in response to a
question about whether could be fair, despite court's efforts at rehabilitation);
Brown y. State 728 So.2d 758, 759 (Fla. 3d DCA 1999) (‘Prospective juror
Mercado's responses, including ”Yeah, I think so, when asked whether he wouldbe able to follow the trial court's instructions, are equivocations, and thus raise a
reasonable doubt as to whether he could serve as a fair and impartial juror.");
Marquez v. State, 721 So.2d 1206, 1207 (Fla. 3d DCA 1998) (juror who said, "I
don't know," when asked whether she could presume the defendant to be innocent
and who was not directly rehabilitated should have been struck for cause); Blye v.
State 566 So.2d 877, 878 (Fla. 3d DCA 1990) (juror who acknowledged in
objectivity because of crimes against her friends should have been excused for
cause; juror stated "I would have difficulty in being objective,” "I cannot stay
very objective," and "I think I would try to be objective.").
4. A venire person who states he/she would have "difficulty" or a problem," or
"trouble" in following the law regarding compensation for pain and suffering
should be dismissed for cause. Pacot v. Wheeler 758 So.2d 1141, 1142 (Fla. 4th
DCA 2000) See also Howard v. State, 698 So.2d 923 (Fla. 4th DCA 1997) (juror
from Finland who expressed difficulty with the concept that accused defendants
were presumed innocent and who stated, "Well if they can prove they're innocent,
its okay," should have been excused for cause).
5. A venire person who admitted a bias against some personal injury claimants by
admitting that the Plaintiff would "have to overcome a burden and not be
starting off even with the defense", that she would "have a little difficulty in
being impartial in this case," and that she felt that personal injury plaintiffs are
"dishonest" should be excused for cause. Goldenburg v. Regional Import and
Export Trucking Co.. Inc. 674 So.2d 761 (Fla. 4th DCA 1996) (reversing trial
court's failure to excuse said venire person for cause).
6. A venire person who has prior experiences that could cloud his judgment or
influence his verdict should be excused for cause. Hall v. State, 682 So.2d 208,
209 (Fla. 3d DCA 1996) (juror's voir dire statement that his wife's victimization in
armed home invasion "could cloud my judgment" raised reasonable doubt about
his ability to render impartial verdict); Wilkins v. State 607 So.2d 500 (Fla. 3d
DCA 1992) (juror who "couldn't definitely say" whether the fact that his five-
year-old, niece was sexually attacked a year prior and the perpetrator was never
prosecuted would influence his verdict should have been excused for cause); Gill
vy. State, 683 So.2d. 158 (Fla. 3d DCA 1996) (jurors who had been victims of
burglaries could not unequivocally state they would be fair and should have been
excused for cause; one juror could only state she would "try" to be fair and
another stated he felt "very negative about people who do what this man is
accused of doing."); Ferguson v. State, 693 So.2d 596 (Fla. 2d DCA 1997) (juror
who had lost two friends because of alcohol and driving and whose beliefs about
driving with alcohol in your system might "possibly" prejudice him should
have been excused for cause).
Moreover, while a juror's individual comments may not give individual bases for a case
challenge, the cumulative effect of the juror's comments may raise reasonable doubt sufficient tojustify a cause challenge. See James v. State 731 So.2d 781 (Fla. 3d DCA 1999) (reversing
denial of cause challenge); Jaffe v. Applebaum, 830 So.2d 136 (Fla. 4th DCA 2002) (reversing a
trial court's denial of a cause strike).
A. Counsel should directly question jurors suspected of prejudice.
Counsel need to directly and thoroughly question jurors who may be suspected of
prejudice; a recent case held that basing a cause challenge solely on a juror raising his hand in
response to questions or on a series of "do you agree with what another juror said" questions is
not enough. In Somerville v. Ahuja, 902 So.2d 930 (Fla. 5th DCA 2005) a prospective juror
raised his hand in response to general questions concerning prejudice; this juror was not
questioned beyond eliciting the fact that he shared a co-juror's feelings about bias against
smokers and that he understood the questions posed to her. See id. at 934. The court held that the
questioning of this juror was "so limited" that the plaintiff "failed to demonstrate that any bias or
prejudice against smokers he admitted to, could not be set aside, and that he could not render an
impartial verdict." Id. at 937. Accordingly, the court refused to reverse the case based on the trial
court's failure to excuse this juror for cause.
V. PROCEDURAL MATTERS
A. Counsel must be given adequate time to conduct voir dire.
To be afforded the right "to conduct a reasonable examination of each juror," as prescribed by
Florida Rule of Civil Procedure 1.431(b), counsel must be given adequate time to conduct voir
dire. The general rule as to length of questioning was succinctly stated in Williams v. State 424
So.2d 148 (Fla. 5th DCA 1982) as follows:
The purpose of voir dire is to obtain a "fair and impartial jury to try the issues in
the cause." Time restriction or limits on number of questions can result in the loss
of this fundamental right. They do not flex with the circumstances, such as when a
response to one question evokes follow-up questions.Id. at 149 (internal citations omitted). See also Barker v. Randolph, 239 So.2d 110, 112 (Fla. Ist
DCA 1970) (the “length and extensiveness [of voir dire] should be controlled by the
circumstances surrounding the juror's attitude in order to assure a fair and impartial trial by
persons whose minds are free from all interest, bias or prejudice."); Cohn v. Julien 574 So.2d
1202 (Fla. 3d DCA 1991) (reversing verdict in medical malpractice wrongful death case, because
the trial judge unreasonably restricted plaintiffs counsel to fifteen minutes for voir dire
examination; citing Williams)”
In Somerville v. Ahuja, 902 So.2d 930 (Fla. Sth DCA 2005) the court chastised the trial
judge for rushing to pick a jury. The court noted that, because the trial judge was frustrated with
having to bring in a second panel of jurors and insisted on completing voir dire that day, the trial
judge "did not accurately recall what [two jurors who should have been dismissed for cause] said
on voir dire, nor did the court allow the court reporter to read back their testimony." Id. at 936.
The court stated that, because the trial court improperly refused to grant the cause challenges,
plaintiff was improperly deprived of a "needed peremptory challenge[.]" Id. at 937. Accordingly,
the court reversed the verdict and remanded the case for a new trial.
B. Courts cannot limit or prohibit backstriking.
The trial court cannot limit or prohibit the use of backstriking and a party can use its peremptory
challenges until the jury has been sworn. This process cannot be circumvented by the trial court's
swearing of individual jurors. Tedder v. Video Elec. Inc 491 So.2d 533 (Fla. 1986) Van Sickle v.
* But see Anderson v. State, 739 So.2d 642 (Fla. 4 DCA 1999) (holding that the trial judge did not abuse
his discretion in trial for grand theft by limiting voir dire to 30 minutes for each party, where counsel
were informed of limitation before commencement of voir dire, no objections were made at the time, trial
judge asked background questions of each prospective juror and posed general questions to panel,
defense counsel's line of questioning during allotted time was somewhat repetitious, and the charged
offenses were not severe).Zimmer 807 So.2d 182 (Fla. 2nd DCA 2002) ("the trial court's failure to allow a party to exercise
a remaining peremptory challenge before the jury is sworn constitutes reversible error").
C. Errors in allotting the number of peremptory challenges is grounds for
reversal.
Rule 1.431(d) of the Florida Rules of Civil Procedure allocates three peremptory
challenges to each party. The rule states, in pertinent part:
Peremptory Challenges. Each party is entitled to three peremptory challenges of
jurors, but when the number of parties on opposite sides is unequal, the opposing
parties are entitled to the same aggregate number of peremptory challenges to be
determined on the basis of three peremptory challenges to each party on the side
with the greater number of parties[.]
Id. In St. Paul Fire and Marine Ins. Co. v. Welsh 501 So.2d 54 (Fla. 4th DCA 1987) the Court of
Appeals held that the trial court committed reversible error when it allotted six peremptory
challenges to the plaintiffs and three peremptory challenges to the intervenors, while only
allowing three peremptory challenges to the defendant. See id. at 55-56. The Court of Appeals
noted that the plaintiffs and defendant "should have had at least an equal number of challenges."
Id. at 56.
D. Peremptory challenges based on race, ethnicity, or gender are prohibited.
In civil and criminal cases, the use of peremptory challenges based on the juror's race,
ethnicity, or gender is prohibited. Dorsey v. State 868 So.2d 1192, 1202 n.8 (Fla. 2003) J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 146 (1994) (holding that the Equal Protection Clause
prohibits gender-based peremptory challenges); Abshire v. State 642 So.2d 542, 544 (Fla. 1994)
(following J.E.B.; holding that attorney's comment that women were more emotional was not a
gender-neutral reason for striking women); Joseph v. State 636 So.2d 777 (Fla. 3rd DCA 1994)
(striking Jewish person in community where Jews made up ten percent of the population was
impermissible discrimination based on ethnicity in violation of Florida constitution). However, itis presumed that peremptory challenges will be exercised in a nondiscriminatory manner.
Melbourne v. State 679 So.2d 759, 764 (Fla. 1996). In Melbourne, the Florida Supreme Court
set forth the procedure for objecting to a peremptory strike based on race as follows:
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 venire
person is a member of a distinct racial group and c) request that the court ask the
striking party its reason for the strike. If these initial requirements are met (step
1), the court must ask the proponent the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to
come forward with a race-neutral explanation (step 2). If the explanation is
facially race-neutral and the court believes that, given all the circumstances
surrounding the strike, the explanation is not a pretext, the strike will be sustained
(step 3). The court’s focus in step 3 is not on the reasonableness of the
explanation but rather its genuineness. Throughout this process, the burden of
persuasion never leaves the opponent of the strike to prove purposeful racial
discrimination.
Id. At 764 (internal citations omitted) (following Batson v. Kentucky 476 U.S. 79 (1986) , and its
progeny); Johnson v. California, 125 S.Ct. 2410, 2417 (2005) (Ex. 82) (a defendant satisfies the
requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred); Portu v. State, 651 So.2d 791 (Fla. 3d DCA
1995) (merely “noting” that a juror being challenged is from a particular cognizable group does
not suffice to trigger and inquiry). The Melbourne court emphasized that the trial court must
evaluated the “genuineness” of an explanation for striking a juror” and determine whether the
proffered explanation for a challenge is a pretext (ie., whether it conceals an intent to
discriminate based on race”). Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999) see
also Henry v. State, 724 So.2d 657, 658 (Fla 3rd DCA 1991) (“A pretextual reason for a strike
may exist when a juror is struck from the jury panel based on a reason equally applicable to an
unchallenged juror.”). The Melbourne analysis also applies in gender-based challenges.“Florida law does not require the explanation for a strike to be objectively reasonable, only that it
be truly nonracial.” Young, 744 So.2d at 1084 (holding that the following were facially race-
neutral reasons for striking three jurors: a heavy accent, being quiet, and having a sister-in-law
whom the juror felt was treated unfairly when arrested for robbery). See also American Security
v. Hettel 572 So.2d 1020 (Fla. 2d DCA 1991) that the following reasoning was not a racially
neutral explanation: "I don't like the way that he responded to my questions, Your Honor ... And
he doesn't appear to be interested in this case or sitting on this jury."); Mitchell vy. CAC-Ramsey
Health Plans, Inc., 719 So.2d 930 (Fla. 3rd DCA 1998) (in medical malpractice action against
physician and health plan, the trial court erred in denying the plaintiffs’ peremptory challenges of
three jurors, because the reasons given for the challenges—that one juror was a hospital
employee and her relative was a physician and another juror had been married to a neurologist—
were race neutral); Baber v. State 776 So.2d 309 (Fla. 4th DCA 2000) (allowing the prosecutor's
strike of a black juror because the prosecutor did not want an African American to evaluate a
black-on-black crime was ineffective assistance of counsel); Haile v. State, 672 So.2d 555 (Fla.
2nd DCA 1996) (trial court erred when it accepted state's explanation that it was peremptorily
striking the sole remaining African-American member of venire because she read the Bible; this
juror was never questioned about her religious beliefs and their effect on her ability to serve as a
juror)
The trial court's ruling "turns primarily on an assessment of credibility and will be
affirmed on appeal unless clearly erroneous." King v. Byrd 716 So.2d 831 (Fla. 4th DC 1999)
review denied, 779 So.2d 271 (Fla. 2000). See also Dorsey v. State, 868 So.2d 1192 (Fla. 2003)
(holding that peremptory strike of African-American prospective juror because she appeared
"disinterested" was not supported by the record; the proponent of a peremptory strike based onnonverbal behavior may satisfy its burden of production of a race-neutral reason for the strike
only if the behavior is observed by the trial court or otherwise has record support).
To preserve the issue for appeal, counsel should renew her objection to a race or gender-
based challenge before the jury is sworn. See Melbourne, 679 So.2d at 765 (holding that counsel
did not preserve the race-based use of a peremptory challenge for review, because counsel did
not renew her objection before the jury was sworn; noting that counsel never requested that the
court ask the State for its reason for the strike); Mazzouccolo v. Gardner, McLain & Perlman.
M.D., PA 714 So.2d 534 (Fla. 4th DCA 1998) (where plaintiffs' counsel makes a timely, gender-
based objection to the defendant having stricken three female jurors and the defendant refuses to
supply a gender-neutral reason for the strikes, to preserve error, plaintiffs’ counsel must not
accept the jury and must renew their gender-based objection or condition acceptance of the jury
on their previous objection).
WHEREFORE, Defendant, HOMEOWNERS CHOICE PROPERTY & CASUALTY
INSURANCE COMPANY, respectfully requests that this Honorable Court apply the above and
foregoing law at the time of jury selection in the instant case, and grant such other and further
relief as is just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
forwarded by electronic mail to: Ryan H. Sherman, Esq. at eserviceSLPA@ gmail.com and
Morgan Barfield at Service@corlessbarlicld.com on this 3“ day of February, 2017.
GROELLE & SALMON, P.A.
Attorneys for Defendant
Waterford Plaza
7650 W. Courtney Campbell Causeway
Suite 800HCP.14211
By:
Tampa, FL 33607
(813) 849-7200 (telephone)
(813) 849-7201 (fax)
gstcourtdocs@gspalaw.com
rschulte@gspalaw.com
Teper T Letuter
ROBERT T. SCHULTE, ESQ.
FBN: 88819
Preview
Filing # 52032530 E-Filed 02/03/2017 12:04:22 PM IN THE CIRCUIT COURT, OF THE 17™ JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE-14-016655 DIV. 02 DEBRA HINES, Plaintiff, vs. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC. a Florida Corporation, Defendant. / DEFENDANT’S MEMORANDUM OF LAW REGARDING VOIR DIRE COMES NOW Defendant, HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, by and through their undersigned counsel, and hereby files this Memorandum of Law regarding Voir Dire, and states as follows: I. PARTIES ARE ENTITLED BY RIGHT, TO A FAIR AND IMPARTIAL JURY; IF THERE IS ANY REASONABLE DOUBT ABOUT A JUROR'S ABILITY TO BE FAIR, THE JUROR MUST BE STRUCK FOR CAUSE. The fair and impartial jury, as guaranteed by the Sixth Amendment to the United States Constitution and Section 11 of the Florida Constitution, is crucial to the administration of justice under our legal system. Singer v. State, 109 So.2d 7 (Fla. 1959). Early Florida Supreme Court decisions heralded the necessity of a fair and impartial jury, as judges initiated an effort to safeguard the integrity of the jury trial. See O'Connor v. State, 9 Fla. 215, 222 (Fla. 1860) ("Jurors should, if possible, be not only impartial, but beyond even the suspicion of partiality."). In Williams _v. State, the court stated, "To render the right to an impartial jury meaningful, cause challenges must be granted if there is a basis for any reasonable doubt as to *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 2/3/2017 12:04:21 PM.****the juror's ability to be fair." 638 So.2d 976, 978 (Fla. 4th DCA 1994) (emphasis added) (citing Hill v. State, 477 So.2d 553 (Fla. 1985), cert. denied 485 U.S. 993 (1988); Singer v. State, 109 So.2d at 23). The Williams court went on to state: Because impartiality of the finders of fact is an absolute prerequisite to our system of justice, we have adhered to the proposition that close cases involving challenges to the impartiality of potential jurors should be resolved in favor-of excusing the juror rather than leaving doubt as to impartiality. Williams, 638 So.2d at 978 see also, ¢.g., Nash _v. General Motors Corp., 734 So.2d 437, 439 (Fla. 3rd DCA 1999) (applying reasonable doubt standard in civil case; stating, "When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial verdict based solely on the evidence submitted and the instructions on the law given to her by the court, she should be excused."). To ensure the impartiality of each juror, Rule 1.431(c) of the Florida Rules of Civil Procedure provides that an individual juror may be challenged for cause for bias or prejudice. The juror's voir dire responses are the fundamental source for grounds of impartiality. The testimony or opinion derived from the potential juror is relevant, competent, and primary evidence on the issue of impartiality. 33 Fla. Jur.2d Juries § 68. A. A juror's assurance that he or she "could be fair" or would "try to be fair" does not control. A juror's sincere belief that he is "a fair person" or the juror's assurance that he or she is able to be impartial does not control. The Court, not the individual juror, is the judge of the juror's freedom from bias. See Gibbs v. State, 193 So.2d 460, 462 (Fla. 2d DCA 1967). In reversing a trial court's denial of a cause strike, the court in Williams v. State, 638 So.2d 976 (Fla. 4th DCA 43), acknowledged that, "Indeed, the juror in his own mind might even believe he could be ‘fair and impartial’." Id. at 979. Likewise and because "most everyone considersthemselves to be a ‘fair person", such statements, even if sincere, do not control the analysis of a reasonable doubt as to such. Nash v. General Motors Corp., 734 So.2d 437, 440 (Fla. 3rd DCA 1999) (reversing refusal to grant cause strike). See also Sikes v. Seaboard Coast Line R.R., 487 So.2d 1118 (Fla.'Fla. Stat. § 913.03 governs cause challenges in criminal actions.1st DCA 1986) (prospective juror who admitted that she didn't think she would be fair but who promised the trial judge that she would "try to be fair" should be dismissed for cause); Leon y. State, 396 So.2d 203, 205 (Fla. 3rd DCA 1981) (juror who did not know if she could be fair should have been excused for cause). If there is a chance that, because of feelings or opinions that a juror carries, he or she may not be totally fair and impartial, that juror should be excused for cause. Club West v. Tropigas of Fla., Inc., 514 So.2d 426 (Fla. 3rd DCA 1987) (juror who had preconceived opinion about a defendant in a civil case should have been excused for cause), cert. denied, 523 So.2d 579 (Fla. 1988). Moreover, "[A] close case should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality." Sydleman v. Benson, 463 So.2d 533 (Fla. 4th DCA 1985). B. Rehabilitation is often insufficient once a juror has expressed partiality. Florida appellate courts have repeatedly held that "a juror is not impartial when one side must overcome preconceived opinions in order to prevail." Price v State, 538 So.2d 486, 489 (Fla. 3rd DCA 1989). A juror's statement that he can set aside his feelings or opinions and render a verdict based on the law and the evidence is not conclusive if it appears from other statements made by him that he is not possessed of a state of mind that will enable him to do so. Somerville v. Ahuia, 902 So. 2d 930 (Fla. 5th DCA 2005) "Potential jurors' responses to questions by the court or counsel in an effort to rehabilitate him or her, after having admitted to harboring somebias or prejudice, that they can set aside those prior admitted feelings is not determinative."); Singer v. State, 109 So.2d 7 (Fla. 1959); Longshore v. Fronrath Chevrolet, Inc., 527 So.2d 922, 924 (Fla. 4th DCA 1988) ("[Juror's] connections with the appellee, coupled with her initial statement that she would ‘try' to be impartial, were not overcome by her subsequent statements that she could be fair."); Ortiz v. State, 543 So.2d 377 (Fla. 3rd DCA 1989) Club West, Inc. v. Tropigas of Fla., Inc., 514 So.2d 426 (Fla. 3rd DCA 1987), cert. denied, 523 So.2d 579 (Fla. 1988). In Johnson v. Reynolds, 97 Fla. 591, 121 So. 793, (Fla. 1929) the Florida Supreme Court stated: It is difficult, if not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom from its influence. By what sort of principle is it to be determined that the last statement of the man is better and more worthy of belief than the former? Id. at 796. Thus, if a juror makes a statement sufficient to cause doubt as to his/her ability to render an impartial verdict, the fact that the trial judge or opposing counsel extracts a commitment that the juror will be fair or will try to be fair is insufficient. See Price v. State, 538 So.2d 486, 488-89 (Fla. 3rd DCA 1989) (it was error for trial court not to excuse a juror for cause because of uncertainty surrounding her impartiality). "A juror's later statement that she can be fair does not erase a doubt as to impartiality[.]" Peters v. State, 874 So.2d 677, 679 (Fla. 4th DCA 2004) (juror's rehabilitation was insufficient when, in response to court's leading question about whether she could set aside her prior experiences and be fair, juror said "I think I could"). See also Goldenberg v. Regional Import & Export Trucking Co., Inc., 674 So.2d 761, 764 (Fla. 4th DCA 1996) (juror's statement that she was a "fair person" was not an unequivocal statement that she could be fair and impartial; "[E]fforts at rehabilitating a prospective juror should always beconsidered in light of what the juror has freely said before the salvage efforts began."); Leon v. State, 396 So.2d 203, 205 (Fla. 3 DCA 1981) (statement that juror will return a verdict according to the evidence is not determinative); Plair_v. State, 453 So.2d 917, 918 (Fla. Ist DCA 1985) (where the prospective juror vacillates between assertions of partiality and impartiality, a reasonable doubt has been created which would require that the juror be excused); Jaffe _v. Applebaum, 830 So.2d 136 (Fla. 4th DCA 2002) (holding that, although no rehabilitation was actually done, any attempt to rehabilitate juror would have been futile in light of juror's responses to. prior questions that demonstrated his bias). In Fazzalan v City of West Palm Beach, the court held: The jurors' subsequent change in their answers, arrived at after further questioning by appellee's counsel, must be reviewed with some skepticism. The assurance of a prospective juror that the juror can decide the case on the facts and the law is not determinative of the issue of a challenge for cause[.] 608 So.2d 927, 929 (Fla. 4th DCA 1992) rev. denied, 620 So.2d 760 (Fla. 1993),disapproved on other grounds, Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89 (Fla.1995). Appellate courts have repeatedly reversed trial courts' attempts to rehabilitate prospective jurors who initially expressed partiality, holding that such efforts were insufficient to remove reasonable doubt as to that prospective juror's impartiality. See Sikes v. Seaboard Coast Line R.R., 487 So.2d 1118 (Fla. Ist DCA 1986) (juror who said she would "try to be fair" was not sufficiently rehabilitated). There are no known cases reversing a trial judge's striking a venire person for cause, while there is abundant case law reversing a trial judge's refusal to strike. Appellate courts are particularly concerned when the trial court attempts to rehabilitate the prospective juror, especially through the use of leading questions. A "juror who is being asked leading questions (by the court) is more likely to 'please' the judge and give the rather obvious answers indicated by the leading questions[.]" Price v. State, 538S0.2d 486, 489 (Fla.3rd DCA 1989) Thus, "It becomes even more difficult for a juror to admit partiality when the court conducts the questioning." Williams v. State, 638S0.2d at 978. In Hagerman v. State, 613 So.2d 552, 553 (Fla. 4th DCA 1993) the court held that the trial judge erred in not excusing a potential juror for cause when the sole rehabilitation was from leading questions by the trial judge. Although the process of rehabilitation is fraught with uncertainty, successful rehabilitation requires that—in response to questioning from counsel or to non-leading questions from the court—the juror make an unequivocal statement that he or she will set aside any bias or prejudice, start from a clean slate, and render an impartial verdict based on the evidence and the law in the case. Compare Overton v. State, 801 So. 2d 877, 894 (Fla. 2001) (upholding trial court's denial of a cause challenge to a juror who said he would "start from a clean slate" and follow the law) with Williams v. State, 638 So.2d 976 (Fla. 4th DCA 1994) (holding that juror should have been dismissed for cause; stating, "Despite the juror's subsequent statement that 'T'll be impartial because that's my character,’ he never expressed unequivocally that he could be fair and impartial in this case. He stated only that he hoped he could." (emphasis added)). The court in Somerville v. Ahuja elaborated: The ultimate test is whether a juror can lay aside any bias or prejudice and render a verdict solely upon the evidence presented and the instructions on the law given by the court. A juror should be able to set aside any bias or prejudice and assure the court and the parties that they can render an impartial verdict based on the evidence submitted and the law announced by the court. 902 So.2d 930, 935 (Fla. Sth DCA 2005). As discussed above, a simple statement that the juror will be fair or try to be fair is not enough. Additionally, a juror's silence to a question asked of the entire panel is insufficient rehabilitation. See Bell v. State, 870 So.2d 893, 895 (Fla. 4th DCA 2004).Thus, in summary, any appearance of partiality is usually sufficient to strike a prospective juror for cause. Rehabilitation efforts are fraught with difficulty. Carratelli v State, 832 So.2d 850 (Fla. 4th DCA 2002) ("The rehabilitation of prospective juror is a tricky business that often leads to reversal."). Il. PARTIES HAVE WIDE LATITUDE TO EXAMINE JURORS, INCLUDING ASKING HYPOTHETICAL QUESTIONS ABOUT LEGAL DOCTRINE AND QUESTIONS RELATING TO PRECONCEIVED OPINIONS. It has long been held in this state that parties have wide latitude to examine jurors for the purpose of ascertaining the qualifications of persons drawn as jurors and whether they would be absolutely impartial in their judgment. See Fla. R. Civ. P. 1.431(b) (1999); Cross v. State, 89 Fla. 212, 216 (Fla. 1925) ("a very wide latitude of examination ... is allowable and indeed often necessary to bring to light the mental attitude of the proposed juror[.]"). Therefore, the "length and extensiveness" of jury selection "should be controlled by the circumstances surrounding the jurors’ attitudes in order to assure a fair and impartial trial by persons whose minds are free from all interest, bias or prejudice." Barker v. Randolph, 239 So.2d 110, 112 (Fla. Ist DCA 1970) see also Gibbs v. State, 193 So.2d 460, 462 (Fla. 2d DCA 1967) (stating that voir dire should be "so varied and elaborated as the circumstances surrounding" the potential jurors); Cross, 89 Fla. at 216 (stating that jurors should be "absolutely impartial in their judgment."). In Lavado v. State, 492 So.2d 1322 (Fla. 1986), the Florida Supreme Court held that it was improper for the trial court to refuse the defendant's request to ask prospective jurors about their willingness to accept one of the defenses. The Court adopted the dissenting opinion of Judge Pearson of the Third District Court of Appeal in its entirety as its majority opinion. Judge Pearson had stated: The scope of voir dire, therefore, "should be so varied and elaborated as the circumstances surrounding the juror..." Thus, where a juror's attitude about aparticular legal doctrine (in the words of the trial court, "the law") is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions. Lavado v. State, 469 So.2d 917, (Fla. 3rd DCA 1985) (Pearson, J., dissenting) (internal citations omitted) (emphasis added). See also Moses _y. State. 535 So.2d 350 (Fla. 4th DCA 1988) (recognizing that the rationale of Lavado is not limited to legal defenses but encompasses inquiry into bias that goes to the heart of defendant's case). Compare Williams v. State, 744 So.2d 1103 (Fla. 3d DCA 1999) (in a case in which eyewitness misidentification was the sole defense, the trial court's restriction of counsel's questioning jurors about their prior experiences in misidentifying people was upheld; the appeals court distinguished Lavado, because the Williams trial judge asked the panel about misidentification and because a juror's experience with misidentification was distinct from whether a juror could accept the defense). Accordingly, hypothetical questions that correctly state the applicable law are proper. See. e.g.,Pait v. State, 112 So.2d 380, 383 (Fla. 1959) ("A hypothetical question making a correct reference to the law of the case to aid in determining the qualifications or acceptability of a prospective juror may be permitted[.]"). Hypothetical questions incorporating evidence at trial and asking how jurors would rule and questions regarding the types of verdicts under a given set of circumstances are not proper. Tampa Elec. Co. v. Bazemore, 85 Fla. 164, 96 So. 297 (Fla 1932), Smith v. State, 253 So.2d 465, 470-71 (Fla. Ist DCA 1971) Guror may not be asked about his attitude toward a witness, especially when it is the primary witness; however, it’s proper to ask whether a juror can follow the court’s instructions as to the credibility of witnesses); Hendrick v. State, 237 So.2d 555, 556 (Fla. 2 DCA 1971 (voir dire questions asking what a verdict would be based on a hypothetical set of facts are improper).A. Areas of Inquiry on Voir Dire Rule 1.431(c) of the Florida Rules of Civil Procedure governs cause challenges. The rule states, in pertinent part: On motion of any party the court shall examine any prospective juror on oath to determine whether that person is related to any party or to the attorney of any party within the third degree or is related to any person alleged to have been wronged or injured by the commission of the wrong for the trial of which the juror is called or has any interest in the action or has formed or expressed any opinion or is sensible of any bias or prejudice concerning it or is an employee or has been an employee of any party within 30 days before the trial. A party objecting to the juror may introduce any other competent evidence to support the objection. If it appears that the juror does not stand indifferent to the action or any of the foregoing grounds of objection exists or that the juror is otherwise incompetent, another shall be called in that juror's place. Fla. R Civ. P. 1.431(¢)(1). In addition to the areas of questioning specifically enumerated in Rule 1.431, jurors can be questioned about the following areas and challenged for cause when appropriate: 1, Whether a juror has reservations about awarding money damages for the death of a loved one and disapproves of personal injury or malpractice lawsuits. Nash v. General Motors Corp., 34 So.2d 437 (Fla. 3rd DCA 1999) (reversing denial of cause strike for juror who had prejudices about personal injury lawsuits); Somerville v. Ahuja; 902 So.2d 930, 933 (Fla. 5th DCA 2005) (juror who had bad feelings about malpractice suits based on conversations with physician uncle and friend in medical school should have been excused for cause); Sisto _v. Aetna Casualty & Surety Co., 689 So.2d 438 (Fla. 4th DCA 1997) (trial court abused its discretion by prohibiting counsel from asking questions about jurors’ views on damages, including non-economic damages; court’s general questions about whether jurors would follow the law did not cure prejudice). Whether a juror can follow the law on pain and suffering. Pacot v. Wheeler; 458 So.2d 1141 (Fla. 4th DCA 2000) (reversing denial of cause strike for juror who said she would have "difficulty" following the law). Whether a juror has negative attitudes toward lawyers or the legal system. Levy v. Hawk's Cay, Inc., 543 So.2d 1299 (Fla. 3rd DCA 1989) (jurors with negative attitudes toward the legal system resulting from unfavorable experiences due to lawsuits being filed against them or members of their family and that those predispositions would result in bias should have been excused for cause), rev. denied, 553 So.2d 1165 (Fla. 1989); Frazier v. Wesch, 913 So. 2d 1216 (Fla. 4th DCA 2005) (juror who stated, I don't care for lawyers much at all, who suggestedthat he would hold the plaintiff to a "clear and obvious" standard of proof, and who indicated that plaintiffs in general were "looking for easy money" and "trying to cheat the system" to "make an easy buck" should have been excused for cause). Whether a juror has a friendship or economic relationship with a party or its counsel. Johnson v. Reynolds 97 Fla. 591, 121 So. 793, (Fla. 1929) holding that a friendly relationship with a party is grounds for a cause challenge); Canty v. State, 597 So.2d 927, 928 (Fla. 3 DCA 1992) ("Nothing can raise more doubts about a juror's impartiality than a previous contact with a party, or their attomey."); Sikes v. Seaboard Coast Line R.R., 487 So.2d 1118, 1119 (Fla. Ist DCA 1986) (refusal to excuse juror whose son was best friend of counsel for defendant and who said this might lead her to give more weight to the defense was reversible error); Longshore v. Fronrath Chevrolet, 527 So.2d 922 (Fla. 4th DCA 1988) (juror whose daughter worked for defendant and who thought defendant's owner was a "good guy" should be excused for cause despite fact that she said he would "try" to be impartial); Mitchell v. CAC-Ramsey Health Plans, Inc, 719 So.2d 930 (Fla. 3' DCA 1998) (juror who was member of defendant health care plan and who had been treated at two of its clinics could have been struck for cause). Whether a juror is or was an employee of one of the parties or works for the same employer as one of the parties. Boca Teeca Corp, v.] Palm Beach County, 291 So.2d 110 (Fla. 4th DCA 1974) (employee juror is subject to challenge for cause); Martin v. State Farm, 892 So.2d 11 (Fla. 5th DCA 1980) (juror employed by hospital where defendant doctor was president, and chief of staff should be dismissed for cause); Hagerman v. State, 613 So.2d 552 (Fla. 4th DCA 1993) (failure to exclude juror who worked in the state attorney's office and knew the assistant state attorney constituted an abuse of discretion). Whether a juror believes that a rendition of a verdict for one of the parties would have any influence on his/her personal life, especially with regard to insurance and the premiums he/she has to pay. Purdy v. Gulf Breeze Enter., Inc. 403 So.2d 1325, 1330 (Fla. 1981) ("[ T Jhe impact of monetary awards. in negligence cases upon automobile liability insurance rates may be proper subject for exploration upon voir dire examination of a jury panel." (internal citations omitted)). Whether a juror owned stock in a defendant corporation. Club West, Inc. v. Tropigas 514 So.2d 426 (Fla, 3rd DCA 1987) (said juror is subject to a cause challenge), cert. denied, 523 So.2d 579 (Fla. 1988). Whether something about the juror's employment "may" affect her decision in the case. Ortiz v. State 543 So.2d 377 (Fla. 3rd DCA 1989) (this is sufficient to disqualify a juror for cause). Whether a juror has life experiences that would influence her decision. See Tizon v. Royal Caribbean Cruise Line, 645 So, 2d 504 (Fla. 3rd DCA 1994) Gurorwho stated she would be influenced by the fact hat her husband and others she knew had successfully recovered from the same surgery the plaintiff had undergone and she would be influenced by the fact that her husband was a physician who had been sued should have been excused for cause, despite fact that she later said she would try to be fair). 10. Whether a juror could put a dollar value on loss of companionship. Gootee v. Clevinger, 778 So.2d 1005, 1008-09 (Fla. 5th DCA 2000) (holding that juror who could not put dollar value on loss of companionship without "a lot more education and many more convictions about the worth of a human life" should have been removed for cause because she could not perform her juror's responsibility). 11. Whether a juror has already formed or expressed an opinion on issues involved in a case based on newspaper articles, hearsay, or other previous experience or information. See Singer _v. State_109 So.2d 7, 19 (Fla. 1959) (juror who had preconceived opinion, and prejudice should have been excused for cause); see also Ortiz v. State 543 So.2d 377,378 (Fla. 3rd DCA 1989) (holding that trial court abused its discretion in denying cause challenge to venireperson who had read newspaper accounts and made conclusions) Club West, Inc. v. Tropigas of Fla., Inc., 514 So.2d 426 (Fla. 3rd DCA 1987) (juror who had preconceived opinion about a defendant in a civil case should have been, excused for cause), cert. denied, 523 So.2d 579 (Fla. 1988); Hill v. State, 477 So.2d 553 (Fla. 1985) ("A juror is not impartial when one side must overcome a preconceived opinion in order to prevail"); Smith v. State 463 So.2d 542, 543 (Fla. 5th DCA 1985) (juror who was "not sure" she could listen to the evidence and court instructions free from the influence of what she had previously seen or heard should have been excused); Somerville v. Ahuja, 902 So.2d 930, 933 (Fla. 5th DCA 2005) (juror who had bad feelings about malpractice suits based on conversations with physician uncle and friend in medical school should have been excused for cause; juror could not unequivocally state she would set those feelings aside) 12. Whether a juror knows about claims concerning the “insurance crisis" or "lawsuit crisis". Bell v. Greissman, 902 So.2d 846 (Fla. 4th DCA 2005) (it was error to deny challenge for cause to juror who was skeptical about tort claims in general and who made comments reflecting strong bias arising out of previous personal experience); Sutherlin v. Fenenga, 810 P.2d 353, 361-62 (N.M. Ct. App. 1991) (party may inquire about juror's knowledge about the "insurance crisis" upon showing that members of jury may have been exposed to media accounts about effect of jury awards on insurance costs); Babcock v. Northwest Memorial Hosp _767 S.W.2d 705 (Tex. 1989) (party should have been allowed to question jurors about a "lawsuit crisis"). Ill. IT IS REVERSIBLE ERROR TO FORCE A PARTY TO USE A PEREMPTORY CHALLENGE ON A PERSON WHO SHOULD HAVE BEEN EXCUSED FOR CAUSE.Florida and most other jurisdictions adhere to the general rule that "It is reversible error to force a party to use a peremptory challenge on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied." Gootee v. Clevinge 778 So.2d 1005, 1009 (Fla. 5th DCA 2000). In Hill v. State, 477 So.2d 553 (Fla. 1985). The Florida Supreme Court noted that failure to dismiss a juror for cause when appropriate abridges a party's right to peremptory challenges by reducing the number of those challenges available to him or her. See id, at 556. Thus, it is "exceedingly important” that trial courts ensure that jurors are unbiased. Id. In order to preserve for appellate review the refusal to grant a challenge for cause, a party must do all of the following: (a) exhaust all remaining peremptory challenges; (b) make a request for additional peremptory challenges that is denied; and (c) identify to the trial court a particular juror who is ultimately empanelled whom the party would have also struck had peremptory challenges not been exhausted.' IV. LANGUAGE SUGGESTING THE NEED FOR A CAUSE STRIKE. The following cases illustrate statements by members of the venire which courts have held require they be excused for cause: ' See, e.g., Grieferv. DePietro 625 So.2d 1226, 1228 (Fla. 4th DCA 1993) is necessary not only to exhaust all the remaining challenges and for request additional peremptory challenges, but to identify to the trial court a particular objectionable juror whom the party would have' also struck had peremptory challenges not been exhausted."); Hill v. State 477 So.2d 553 (Fla.1985) (stating that it is error to force a party to use peremptory challenges on a juror who should have been excused for cause where party exhausted all peremptory challenges and addition | challenges were sought and denied); Dardar v. Southard Distrib. of Tampa; 563 So.2d 1112 (Fla. 2d DCA1990) (stating that, if a party exhausts his peremptory challenges but does not request additional challenges, any error in the court's denial of that party's challenges for cause is not preserved), Metro, Dade County v. Sims Paving Corp., 576 So.2d 766, 767 (Fla. 3d DCA 1991) (holding that the trial court must empanel an objectionable juror in order to demonstrate. prejudice); Taylor v. Pub. Health Trust, '546 So.2d 733, 733 (Fla. 3rd DCA 1989) (holding there was no reversible error, because "counsel did not request an additional challenge nor indicate in any way that she was dissatisfied with any member of the jury which tried the case"). Compare Frazier v. Wesch, 913 So.2d 1216 (Fla. 4% DCA 2005) (no error where plaintiff requested peremptory strike to excuse juror who sat as alternate but who was excused before the jury retired to deliberate).A venire person who admits a party would start out with a strike or half strike against him should be excused for cause. Club West, Inc. v Tropigas of Fla., Inc.; 514 So.2d 426, 428 (Fla. 3d DCA 1987), cert. denied, 523 So.2d 579 (Fla. 1988) (holding that trial court abused its discretion in refusing to excuse for cause a juror who admitted that, because of her prior favorable and profitable experiences with a defendant, the plaintiff "may" be starting out with "one strike against him", despite her later statement she could be impartial); Jaffe v. Applebaum 830 So.2d 136 (Fla. 4th DCA 2002) (in medical malpractice action involving allegedly negligent cosmetic procedure, juror who admitted he owed his life to his surgeon and plastic surgeon, and because of such experience, plaintiff/patient would have started out with a half strike against her should have been struck for cause). A venireman who admits a potential bias, or who admits he probably would be prejudiced or would probably give a bit more weight to what opposing counsel or certain witnesses say should be excused for cause. Bell v State; 870 So.2d 893 (Fla. 4th DCA 2004) (reversing trial court's refusal to grant defendant's cause challenge to venireman who admitted a potential bias by stating "If I had a bias it would be against the defendant," and later responded by saying "I'd try not to" and "I would give it my best shot" when the judge attempted to rehabilitate him); Sikes _v. Seaboard Coast Line R.R. 487 So.2d 1118 (Fla. Ist DCA 1986) (reversing trial court's failure to strike for cause a venire person who admitted that he would "probably" "give a little bit more weight to what t y [opposing counsel] say as opposed to what I say"); Imbimbo v. State 555 So.2d 954 (Fla. 4th DCA 1990) (juror who admitted she "probably" would be prejudiced, even though she then asserted she "probably" could follow the judge's instructions should be struck for cause); Somerville v. Ahuja 902 So.2d 930, 933-34 (Fla. Sth DCA 2005) (juror who admitted that he "probably" would bring back a verdict for the defense should have been excused for cause, despite the fact that the court stated that counsel could "probably get anybody on that jury to say that"); Slater v. State 910 So.2d 347 (Fla. 4th DCA Sept. 14, 2005) (juror who stated during voir dire that he believed the testimony of a police officer carried a little more weight than that of a lay person should have been stricken for cause). A venire person who states she could not say she would be strictly impartial, is not a hundred percent sure she could be fair, or cannot affirmatively say she would follow the court's instructions should be excused for cause. Gootee v. Clevinge, 778 So.2d 1005 (Fla. 5th DCA 2000) (reversing a trial court's failure to strike for cause a venire person who really could not say she would be strictly impartial despite her later statement that she "can be fair whether she likes it or not"); Williams v. State, 638 So.2d 976 (Fla. 4th DCA 1994) (reversing a trial court's refusal to excuse for cause a venire person who conceded by nodded head to counsel's question, "You're not a hundred percent sure that you could be fair and impartial, is that correct?" and who stated I hope that I can" in response to a question about whether could be fair, despite court's efforts at rehabilitation); Brown y. State 728 So.2d 758, 759 (Fla. 3d DCA 1999) (‘Prospective juror Mercado's responses, including ”Yeah, I think so, when asked whether he wouldbe able to follow the trial court's instructions, are equivocations, and thus raise a reasonable doubt as to whether he could serve as a fair and impartial juror."); Marquez v. State, 721 So.2d 1206, 1207 (Fla. 3d DCA 1998) (juror who said, "I don't know," when asked whether she could presume the defendant to be innocent and who was not directly rehabilitated should have been struck for cause); Blye v. State 566 So.2d 877, 878 (Fla. 3d DCA 1990) (juror who acknowledged in objectivity because of crimes against her friends should have been excused for cause; juror stated "I would have difficulty in being objective,” "I cannot stay very objective," and "I think I would try to be objective."). 4. A venire person who states he/she would have "difficulty" or a problem," or "trouble" in following the law regarding compensation for pain and suffering should be dismissed for cause. Pacot v. Wheeler 758 So.2d 1141, 1142 (Fla. 4th DCA 2000) See also Howard v. State, 698 So.2d 923 (Fla. 4th DCA 1997) (juror from Finland who expressed difficulty with the concept that accused defendants were presumed innocent and who stated, "Well if they can prove they're innocent, its okay," should have been excused for cause). 5. A venire person who admitted a bias against some personal injury claimants by admitting that the Plaintiff would "have to overcome a burden and not be starting off even with the defense", that she would "have a little difficulty in being impartial in this case," and that she felt that personal injury plaintiffs are "dishonest" should be excused for cause. Goldenburg v. Regional Import and Export Trucking Co.. Inc. 674 So.2d 761 (Fla. 4th DCA 1996) (reversing trial court's failure to excuse said venire person for cause). 6. A venire person who has prior experiences that could cloud his judgment or influence his verdict should be excused for cause. Hall v. State, 682 So.2d 208, 209 (Fla. 3d DCA 1996) (juror's voir dire statement that his wife's victimization in armed home invasion "could cloud my judgment" raised reasonable doubt about his ability to render impartial verdict); Wilkins v. State 607 So.2d 500 (Fla. 3d DCA 1992) (juror who "couldn't definitely say" whether the fact that his five- year-old, niece was sexually attacked a year prior and the perpetrator was never prosecuted would influence his verdict should have been excused for cause); Gill vy. State, 683 So.2d. 158 (Fla. 3d DCA 1996) (jurors who had been victims of burglaries could not unequivocally state they would be fair and should have been excused for cause; one juror could only state she would "try" to be fair and another stated he felt "very negative about people who do what this man is accused of doing."); Ferguson v. State, 693 So.2d 596 (Fla. 2d DCA 1997) (juror who had lost two friends because of alcohol and driving and whose beliefs about driving with alcohol in your system might "possibly" prejudice him should have been excused for cause). Moreover, while a juror's individual comments may not give individual bases for a case challenge, the cumulative effect of the juror's comments may raise reasonable doubt sufficient tojustify a cause challenge. See James v. State 731 So.2d 781 (Fla. 3d DCA 1999) (reversing denial of cause challenge); Jaffe v. Applebaum, 830 So.2d 136 (Fla. 4th DCA 2002) (reversing a trial court's denial of a cause strike). A. Counsel should directly question jurors suspected of prejudice. Counsel need to directly and thoroughly question jurors who may be suspected of prejudice; a recent case held that basing a cause challenge solely on a juror raising his hand in response to questions or on a series of "do you agree with what another juror said" questions is not enough. In Somerville v. Ahuja, 902 So.2d 930 (Fla. 5th DCA 2005) a prospective juror raised his hand in response to general questions concerning prejudice; this juror was not questioned beyond eliciting the fact that he shared a co-juror's feelings about bias against smokers and that he understood the questions posed to her. See id. at 934. The court held that the questioning of this juror was "so limited" that the plaintiff "failed to demonstrate that any bias or prejudice against smokers he admitted to, could not be set aside, and that he could not render an impartial verdict." Id. at 937. Accordingly, the court refused to reverse the case based on the trial court's failure to excuse this juror for cause. V. PROCEDURAL MATTERS A. Counsel must be given adequate time to conduct voir dire. To be afforded the right "to conduct a reasonable examination of each juror," as prescribed by Florida Rule of Civil Procedure 1.431(b), counsel must be given adequate time to conduct voir dire. The general rule as to length of questioning was succinctly stated in Williams v. State 424 So.2d 148 (Fla. 5th DCA 1982) as follows: The purpose of voir dire is to obtain a "fair and impartial jury to try the issues in the cause." Time restriction or limits on number of questions can result in the loss of this fundamental right. They do not flex with the circumstances, such as when a response to one question evokes follow-up questions.Id. at 149 (internal citations omitted). See also Barker v. Randolph, 239 So.2d 110, 112 (Fla. Ist DCA 1970) (the “length and extensiveness [of voir dire] should be controlled by the circumstances surrounding the juror's attitude in order to assure a fair and impartial trial by persons whose minds are free from all interest, bias or prejudice."); Cohn v. Julien 574 So.2d 1202 (Fla. 3d DCA 1991) (reversing verdict in medical malpractice wrongful death case, because the trial judge unreasonably restricted plaintiffs counsel to fifteen minutes for voir dire examination; citing Williams)” In Somerville v. Ahuja, 902 So.2d 930 (Fla. Sth DCA 2005) the court chastised the trial judge for rushing to pick a jury. The court noted that, because the trial judge was frustrated with having to bring in a second panel of jurors and insisted on completing voir dire that day, the trial judge "did not accurately recall what [two jurors who should have been dismissed for cause] said on voir dire, nor did the court allow the court reporter to read back their testimony." Id. at 936. The court stated that, because the trial court improperly refused to grant the cause challenges, plaintiff was improperly deprived of a "needed peremptory challenge[.]" Id. at 937. Accordingly, the court reversed the verdict and remanded the case for a new trial. B. Courts cannot limit or prohibit backstriking. The trial court cannot limit or prohibit the use of backstriking and a party can use its peremptory challenges until the jury has been sworn. This process cannot be circumvented by the trial court's swearing of individual jurors. Tedder v. Video Elec. Inc 491 So.2d 533 (Fla. 1986) Van Sickle v. * But see Anderson v. State, 739 So.2d 642 (Fla. 4 DCA 1999) (holding that the trial judge did not abuse his discretion in trial for grand theft by limiting voir dire to 30 minutes for each party, where counsel were informed of limitation before commencement of voir dire, no objections were made at the time, trial judge asked background questions of each prospective juror and posed general questions to panel, defense counsel's line of questioning during allotted time was somewhat repetitious, and the charged offenses were not severe).Zimmer 807 So.2d 182 (Fla. 2nd DCA 2002) ("the trial court's failure to allow a party to exercise a remaining peremptory challenge before the jury is sworn constitutes reversible error"). C. Errors in allotting the number of peremptory challenges is grounds for reversal. Rule 1.431(d) of the Florida Rules of Civil Procedure allocates three peremptory challenges to each party. The rule states, in pertinent part: Peremptory Challenges. Each party is entitled to three peremptory challenges of jurors, but when the number of parties on opposite sides is unequal, the opposing parties are entitled to the same aggregate number of peremptory challenges to be determined on the basis of three peremptory challenges to each party on the side with the greater number of parties[.] Id. In St. Paul Fire and Marine Ins. Co. v. Welsh 501 So.2d 54 (Fla. 4th DCA 1987) the Court of Appeals held that the trial court committed reversible error when it allotted six peremptory challenges to the plaintiffs and three peremptory challenges to the intervenors, while only allowing three peremptory challenges to the defendant. See id. at 55-56. The Court of Appeals noted that the plaintiffs and defendant "should have had at least an equal number of challenges." Id. at 56. D. Peremptory challenges based on race, ethnicity, or gender are prohibited. In civil and criminal cases, the use of peremptory challenges based on the juror's race, ethnicity, or gender is prohibited. Dorsey v. State 868 So.2d 1192, 1202 n.8 (Fla. 2003) J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994) (holding that the Equal Protection Clause prohibits gender-based peremptory challenges); Abshire v. State 642 So.2d 542, 544 (Fla. 1994) (following J.E.B.; holding that attorney's comment that women were more emotional was not a gender-neutral reason for striking women); Joseph v. State 636 So.2d 777 (Fla. 3rd DCA 1994) (striking Jewish person in community where Jews made up ten percent of the population was impermissible discrimination based on ethnicity in violation of Florida constitution). However, itis presumed that peremptory challenges will be exercised in a nondiscriminatory manner. Melbourne v. State 679 So.2d 759, 764 (Fla. 1996). In Melbourne, the Florida Supreme Court set forth the procedure for objecting to a peremptory strike based on race as follows: 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 venire person is a member of a distinct racial group and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination. Id. At 764 (internal citations omitted) (following Batson v. Kentucky 476 U.S. 79 (1986) , and its progeny); Johnson v. California, 125 S.Ct. 2410, 2417 (2005) (Ex. 82) (a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred); Portu v. State, 651 So.2d 791 (Fla. 3d DCA 1995) (merely “noting” that a juror being challenged is from a particular cognizable group does not suffice to trigger and inquiry). The Melbourne court emphasized that the trial court must evaluated the “genuineness” of an explanation for striking a juror” and determine whether the proffered explanation for a challenge is a pretext (ie., whether it conceals an intent to discriminate based on race”). Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999) see also Henry v. State, 724 So.2d 657, 658 (Fla 3rd DCA 1991) (“A pretextual reason for a strike may exist when a juror is struck from the jury panel based on a reason equally applicable to an unchallenged juror.”). The Melbourne analysis also applies in gender-based challenges.“Florida law does not require the explanation for a strike to be objectively reasonable, only that it be truly nonracial.” Young, 744 So.2d at 1084 (holding that the following were facially race- neutral reasons for striking three jurors: a heavy accent, being quiet, and having a sister-in-law whom the juror felt was treated unfairly when arrested for robbery). See also American Security v. Hettel 572 So.2d 1020 (Fla. 2d DCA 1991) that the following reasoning was not a racially neutral explanation: "I don't like the way that he responded to my questions, Your Honor ... And he doesn't appear to be interested in this case or sitting on this jury."); Mitchell vy. CAC-Ramsey Health Plans, Inc., 719 So.2d 930 (Fla. 3rd DCA 1998) (in medical malpractice action against physician and health plan, the trial court erred in denying the plaintiffs’ peremptory challenges of three jurors, because the reasons given for the challenges—that one juror was a hospital employee and her relative was a physician and another juror had been married to a neurologist— were race neutral); Baber v. State 776 So.2d 309 (Fla. 4th DCA 2000) (allowing the prosecutor's strike of a black juror because the prosecutor did not want an African American to evaluate a black-on-black crime was ineffective assistance of counsel); Haile v. State, 672 So.2d 555 (Fla. 2nd DCA 1996) (trial court erred when it accepted state's explanation that it was peremptorily striking the sole remaining African-American member of venire because she read the Bible; this juror was never questioned about her religious beliefs and their effect on her ability to serve as a juror) The trial court's ruling "turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous." King v. Byrd 716 So.2d 831 (Fla. 4th DC 1999) review denied, 779 So.2d 271 (Fla. 2000). See also Dorsey v. State, 868 So.2d 1192 (Fla. 2003) (holding that peremptory strike of African-American prospective juror because she appeared "disinterested" was not supported by the record; the proponent of a peremptory strike based onnonverbal behavior may satisfy its burden of production of a race-neutral reason for the strike only if the behavior is observed by the trial court or otherwise has record support). To preserve the issue for appeal, counsel should renew her objection to a race or gender- based challenge before the jury is sworn. See Melbourne, 679 So.2d at 765 (holding that counsel did not preserve the race-based use of a peremptory challenge for review, because counsel did not renew her objection before the jury was sworn; noting that counsel never requested that the court ask the State for its reason for the strike); Mazzouccolo v. Gardner, McLain & Perlman. M.D., PA 714 So.2d 534 (Fla. 4th DCA 1998) (where plaintiffs' counsel makes a timely, gender- based objection to the defendant having stricken three female jurors and the defendant refuses to supply a gender-neutral reason for the strikes, to preserve error, plaintiffs’ counsel must not accept the jury and must renew their gender-based objection or condition acceptance of the jury on their previous objection). WHEREFORE, Defendant, HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, respectfully requests that this Honorable Court apply the above and foregoing law at the time of jury selection in the instant case, and grant such other and further relief as is just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded by electronic mail to: Ryan H. Sherman, Esq. at eserviceSLPA@ gmail.com and Morgan Barfield at Service@corlessbarlicld.com on this 3“ day of February, 2017. GROELLE & SALMON, P.A. Attorneys for Defendant Waterford Plaza 7650 W. Courtney Campbell Causeway Suite 800HCP.14211 By: Tampa, FL 33607 (813) 849-7200 (telephone) (813) 849-7201 (fax) gstcourtdocs@gspalaw.com rschulte@gspalaw.com Teper T Letuter ROBERT T. SCHULTE, ESQ. FBN: 88819