When Does Bias Stop a Person from Serving on a Personal Injury Jury in Nevada?

What does a personal injury lawyer do when a potential juror says they don’t believe that people should make personal injury claims?  One would think that the judge would excuse that person from the juror panel. But trials are never that simple.

Instead, starting in 2011, the Nevada Supreme Court said that " .. .if a prospective juror expresses a preconceived opinion or bias about the case, that juror should not be removed for cause if the record as a whole demonstrates that the prospective juror could 'lay aside his impression or opinion and render a verdict based on the evidence presented in court.

However, “[d]etached language considered alone is not sufficient to establish that a juror can be fair when the juror's declaration as a whole indicates that she could not state unequivocally that a preconception would not influence her verdict.”  Boonsong Jitnan v. Oliver, 127 Nev. 424, 432 (2011).

What does this mean when you are in the courtroom with a biased juror? It plays out like this: Juror No. 3 says they don’t believe people should make personal injury claims. The insurance company’s lawyer then says, “But, you could put your bias aside and follow the law, right?” Juror No. 3 says “yes” and they are allowed to stay on the jury panel.  Everyone knows that people just don’t forget their biases, yet for some reason, this fiction is often allowed in Las Vegas personal injury trials.

In a recent 2015 case, the Nevada high court expanded on its guidelines and said: "If the trial court sufficiently questions the juror and determines the juror can set aside any bias and be impartial, we will generally defer to the trial court's decision. Sanders v. Sears-Page, 354 P.3d 201, 206-07, 131 Nev. Adv. Op. 50 (Nev. App. 2015).

Deference does not, however, mandate affirmance where failure to strike the juror was erroneous .... [I]f a juror's 'background is replete with circumstances which would call into question his ability to be fair,' the district court should remove the juror for cause, even if the juror has stated he or she can be impartial." Id.

The following year, the parties in a contentious personal injury trial appealed the trial judge’s decision on the issue of a biased juror. The high court said that "Potential bias is not a valid basis for dismissing a juror for cause. Khoury v. Seastrand, 377 P.3d 81, 89, 132 Nev. Adv. Op. 52 (2016). Instead, jurors should only be excluded on the basis of an actual bias that prevents or substantially impairs the juror's ability to apply the law and the instructions of the court in deciding the verdict or for other grounds defined by statute." Id.

What does this all mean?  It means that when your personal injury lawyer questions a potential juror, they must show the court that the person is actually biased, not just potentially or hypothetically biased.  In the end, whether a biased juror is allowed to stay on the jury is up to the trial judge. Your personal injury lawyer and the insurance company lawyer will continue to battle this out in the courtroom.

Next time we will discuss breach of warranty claims in relation to negligence claims.

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