Posted by Bill Sandweg on 13 December 2021.
Recently, the Arizona Supreme Court changed the rules relating to jury selection in both civil and criminal cases. The rule changes will take effect next month. They may have a big effect on medical malpractice trials.
Under the old rules, when lawyers were picking a jury, there were two kinds of challenges the lawyers could use to strike potential jurors from the panel. The first kind of challenge is one for cause. If a juror was biased in favor of or against one of the parties or could not be fair to both parties, the trial lawyer could ask the judge to strike the juror “for cause.”
The second kind of challenge was called a “peremptory challenge.” After all of the jurors had been questioned and the judge had ruled on all of the challenges for cause, the lawyers could each strike four or five of the remaining people called for jury duty that day. They could strike them for any reason or no reason. They could strike them because their hair was too long or too short. They could strike them because they used to work in the medical profession or because they had no medical background at all. The only limitation on peremptory challenges was that they not be used for a bad reason, such as striking someone because of their race.
If one of the lawyers believed that the other lawyer had used a peremptory challenge for an improper purpose, she could bring the issue to the attention of the trial judge, who would consider the matter and decide whether to allow the peremptory challenge or not.
This did not happen very often in civil cases but did happen with some frequency in criminal cases where prosecutors preferred not to have minorities on the jury, especially if a minority person was the defendant. The United States Supreme Court famously reversed a number of death sentence convictions in cases where it found that prosecutors had systematically used peremptory challenges to get rid of minority jurors.
The petition to change the jury selection rules that was submitted to the Arizona Supreme Court claimed that racial discrimination was being practiced through the use of peremptory challenges and that the best way to prevent it was to abolish peremptory challenges completely. Despite near unanimous opposition by trial lawyers, the Supreme Court granted the petition and abolished peremptory challenges effective January of 2022.
So how might this affect medical malpractice trials?
If you are a regular reader of this blog, you know that doctors and hospitals win around 85% of the medical malpractice cases that go to trial in Arizona. This is true even though many of the cases which health care providers win have strong evidence of malpractice that caused injury to the patient. Most of the prospective jurors in the state of Arizona have had good experiences with doctors and do not believe that they make mistakes that kill or injure patients and, even if they do, are willing to cut them a break and send the injured patient home with nothing. Only a few of the jurors who get summoned to show up for a malpractice trial will be likely to find in favor of the patient. Up until now, the malpractice defense attorneys could use a peremptory challenge to get rid of these jurors who might find in favor of the patient. Not any more.
Once the rule amendment becomes effective, the malpractice defense lawyer will only be able to get rid of those jurors who might favor the patient if the defense lawyer can convince the judge that the juror cannot be fair. If the juror says that she or he can be fair, despite having a bad experience with the medical profession, for example, that juror will sit for the trial and decide the case. The rule change will be less damaging to the attorney representing the patient as there were always too many jurors who favor the doctors for the patient’s attorney to strike anyway.
Of course, we will have to see how this plays out, but there is reason for injured patients to be encouraged for a change.