Tuesday, October 6, 2009

CAUTION: Lack of Recorded Voir Dire May Preclude Appellate Review of Objections Raised During Jury Selection

In the case of Allen v. Thomas, 976 A.2d 1279 (Pa.Cmwlth. 2009, Friedman, S.J.), the Commonwealth Court held that the lack of a recorded voir dire proceedings precluded appellate review of the claims of an improper limitation by the trial judge of voir dire questioning by the plaintiff's attorney.

The Allen case arose out out of a motor vehicle accident that occurred in a municipal parking garage. In this Philadelphia County case, the local rules required counsel to request a recording of voir dire if they desired the same. Otherwise, the jury selection process was not recorded or transcribed. Plaintiff's attorney did not request a recording in this matter.

After trial, a defense verdict was entered and the plaintiff appealed, in part, on the grounds that the Philadelphia County trial court judge (Senior Judge Jelin) abused his discretion during the jury selection process by refusing to allow the plaintiff's attorney to question the potential jurors regarding their opinions on tort reform.

In his Rule 1925 Opinion on the issue, the trial court judge denied that he had restricted the plaintiff's attorney in any way from asking questions about tort reform during jury selection.

Thus, the appellate court was faced with an attorney asserting that the judge had acted erroneously during voir dire, a trial court judge who denied that he had restricted the attorney's efforts at questioning the jury in any way, and no transcript of the jury selection proceedings to determine who had the more accurate memory of how the events unfolded.

The Commonwealth Court noted that the plaintiff's attorney's attempt to rely upon other portions of the trial transcript that did referenced the ongoing arguments over the voir dire objections were insufficient to create a reviewable record on the issues presented.

In any event, in those portions of the transcripts, the trial judge was noted to repeatedly state on the record to the plaintiff's attorney that the attorney was "entirely inaccurate and...wrong" in his assertions that the trial judge had limited the voir dire questioning.

Elsewhere in the transcript, the trial judge told plaintiff's attorney, "I gave you every opportunity to ask appropriate questions, Counsel. You chose not to do so."

Surely, where the record on appeal only comes down to a judge's word against an attorney's word, an appellate court is more likely to side with the judge, if only to be able to uphold the trial court's decisions and avoid the need for a retrial, thereby furthering the interests of judicial economy in the overburdened court system.

In this case, the Commonwealth Court noted that, in the absence of any record of the actual voir dire questions at issue or the trial court's ruling on the same, the Commonwealth Court was unable to conclude that the trial court made improper rulings or abused its discretion. Accordingly, the trial court's denial of the plaintiff's post-trial motions was affirmed on appeal.

MORAL OF THE STORY:

ALWAYS ASK FOR A TRANSCRIPTION OF THE VOIR DIRE PROCEEDINGS IN ORDER TO FULLY PROTECT YOUR CLIENT'S INTERESTS

AT THE VERY LEAST, REQUEST THAT VOIR DIRE OBJECTIONS AND COURT RULINGS BE TRANSCRIBED

IF COURT REFUSES TO ALLOW ANY TRANSCRIPTION, PUT ON THE RECORD THAT THE REQUEST FOR A TRANSCRIPTION WAS MADE AND REJECTED BY THE COURT

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