Thursday, April 23, 2020

Pennsylvania Supreme Court Finds That Issue of Whether It Is Proper For a Trial Court Judge To Leave The Bench During Jury Selection Was Not Preserved

Tort Talkers may recall that we have been waiting for the Pennsylvania Supreme Court to voice its opinion on the propriety of the practice of some trial court judges choosing to leave the bench during jury selection and allowing the litigating attorneys to conduct voir dire on their own.

The Pennsylvania Supreme Court was positioned to answer this question in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  However, in its decision issued yesterday, the Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.  (The Tort Talk Blog post on the Superior Court's decision, along with other posts pertaining to this Trigg decision, can be viewed HERE).

Note however that, in their Concurring Opinions, Justice Donohue and Justice Wecht expressed their misgivings with regards to any practice whereby a trial court judge would leave the bench during the jury selection proceedings.

Justice Wecht also provides some cogent advice in his Concurring Opinion with regards to properly stating objections at appropriate times, creating and preserving objections on the record before trial and at trial, and even the merits of making objections that an attorney knows will be overruled if only to preserve the issue on appeal.

While most of the Majority Opinion focuses on the law of waiver of objections and not so much on the merits of the question of whether it is proper for a trial court judge to leave the bench during voir dire, both Concurring Opinions are worth reading relative to the jury selection question.

To read the Majority Opinion, please click HERE.

To read Justice Donohue's Concurring Opinion, please click HERE.

To read Justice Wecht's Concurring Opinion, please click HERE.

Commentary:  Now that it has been brought to the Supreme Court's decision that there is a practice in some trial courts around the Commonwealth of Pennsylvania where trial judges leave the bench during jury selection, and now that some of the Justices have vocalized their disdain for the practice, it remains to be seen if the Court will now effectuate a change in the Pennsylvania Rules of Civil Procedure to mandate that trial court judges remain on the bench for the entirety of voir dire.

If such changes are to be made, perhaps the Court would also consider mandating, through an amendment to the Rules, that a Court Reporter also be required to transcribe the entirety of voir dire.  Oftentimes, there is pressure on litigants from the trial court to agree to forgo the need for a court reporter to record the voir dire.

There is no question that it is a better practice to have a court reporter take down what is happening in voir dire as it happens as opposed to having no court reporter present and then later summoning a court reporter and attempting to rehash what happened with respect to an objection previously raised during voir dire.

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