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Picking a Jury in a Civil Case in Ohio

I. Reflections on the Jury Selection Process

by Amy Singer, Ph.D.

In a trial, jurors get a chance to speak on only two occasions - once to you during voir dire, and then later to each other during deliberations. Successful lawyers realize that these are not two conversations, but one. If you don't listen to the first half, you will lose the second half.

But active listening during voir dire is only half the battle - indeed, active listening is worthless if you don't have anything worth listening to. That's why it's critical during voir dire to set a tone so the jurors will feel free to openly express themselves, and thus reveal their true attitudes and opinions concerning the primary case issues. This is the only way that you can get to fully know the jurors, and what their attitudes may be about your case.

Unfortunately, this objective is seldom achieved during many trials. In fact, some attorneys often seem to be working to achieve quite the opposite outcome during voir dire. The questions they ask jurors, and the manner in which they ask such questions, almost seem to be designed to inhibit juror responses, rather than to promote them.

Voir dire: More Psychological than Legal

The primary reason for the above discrepancy is that many attorneys don't seem to understand what voir dire is really all about. Few attorneys realize, for instance, that voir dire is primarily a psychological process, rather than a legal one. As such, its terrain is composed of beliefs, attitudes, opinions, and prejudices, all psychological entities. As a psychological process, voir dire requires a far different set of skills than those employed during the other trial segments.

For example, expertise in employing close-ended questions, while an invaluable asset during cross-examination, is worth little during voir dire. Close-ended questions are great for tightly pinning a witness down with strict "yes" or "no" responses. But "yes" and "no" responses tell you virtually nothing about a juror's values and beliefs, your primary subjects of interest during the jury selection process.

Nevertheless, most questions posed to jurors during voir dire often seem to take the form of close-ended questions. Attorneys use such questions to try to control jurors and to limit their responses; many attorneys, in fact, seem to mistakenly believe this to be a worthwhile goal for voir dire. They worry that the open expression of feelings by one juror may contaminate the others.

The truth is that juror contamination is a myth. Juror attitudes and opinions, i.e., their bedrock beliefs, are very unlikely to be changed simply due to the mere utterance of a contrary belief by another juror.

Similar misperceptions about other key aspects of voir dire often make this vital trial section an uncomfortable and unrewarding one for many attorneys. In this regard, it will be worthwhile to try to eliminate some of the more ill-conceived (yet widely held) notions regarding how voir dire should be structured, before examining what really works.

How Not to Conduct Voir Dire

I have observed three approaches to voir dire that are all dead wrong. The first wrong-headed approach comes from lawyers who seem not to want to learn anything about the jurors - instead, they just want to tell them things. For example:

Attorney: Voir dire is a French term meaning "to speak the truth." (Subtext: See how smart I am...much smarter than you!)

Attorney: I'm not trying to pry into your personal life. I'm just trying to determine if you are qualified to sit on this jury. (Subtext: I'm morally qualified to be here. Are you?)

Attorney: You can set aside your personal experiences, right? (Subtext: If you are a good person you will surely see things my way - even if my way is completely contrary to your entire belief system.)

The problem with this approach is twofold - 1) it does not permit you to learn anything about the jurors, and 2) it provides the jurors with ample reasons to dislike you.

The second ill-conceived approach for voir dire comes from lawyers who concern themselves almost entirely regarding juror demographic factors - gender, age, occupation, marital and family status, economic class, ethnic and religious background, and so on. Many lawyers contend that such demographic factors are the cornerstones of predictability concerning how jurors will judge a case. They believe that just as a compass always points due North, demographics also reliably point to probable juror attitudes concerning the case. It's the old, "Which sides of the tracks did you grow up on?" question, with juror attitudes conveniently lining up one way or another, depending on the answer.

"Demographic dependency" is a common characteristic among trial attorneys. Nevertheless, it represents an extremely flawed approach to voir dire. Numerous jury research studies indicate that observable, objective variables (demographics) are often the least predictive of jury behavior and verdicts. Further, jurors are not stupid and will resent it as demeaning and/or discriminatory if they sense that they are being classified according to such stereotypical factors as race, gender, and so on.

The third poorly planned approach to voir dire concerns attorneys who ask insulting questions that presume possible moral and ethical flaws among the jurors: "Can you apply the law on a reasonable basis?" "Can you listen objectively?" "Can you be fair?" "Can you withhold judgment until all of the evidence is presented?"

The problem with this approach is obvious - socially acceptable responses are the only ones the attorney will ever receive. Further, such questions will often irritate the jurors, who are being required to publicly affirm that they are not close-minded idiots and/or bigots.

Attorneys who pose such poorly-conceived questions flag their own insecurities for all to see. They are exhibiting a desperate need to be reassured that the potential jurors will somehow be able to put aside their presumed prejudices for the purposes of rendering a verdict the lawyer hopes to achieve.

Clearly, the above approaches are likely to prove ineffective to discover anything worthwhile about jurors during voir dire. But to learn what actually does work, we must first more fully understand what voir dire is really all about.

Deciphering Voir Dire

To properly understand voir dire, it will be worthwhile to break the subject down into its two primary objectives vis a vis the attorney - 1) securing useful information from and about the jurors, and 2) understanding what to do with that information once you get it, i.e., knowing whom to select (de-select) from the panel. These two components comprise the essence of voir dire, it's raison d'etre.

Many attorneys often fail to achieve the first objective of voir dire, i.e., securing useful information about the jurors and their key values and beliefs. This makes the second objective, the de-selection process, a virtual crapshoot.

The reason many attorneys have such a difficult time realizing their first objective is due to a common human emotion: FEAR.

Attorneys need to be in control. They can do so during opening statement, closing argument, direct examination, and cross-examination - but voir dire offers them little or no traction. In fact, voir dire often proves to be a blind leap into the Great Unknown for many attorneys - the primary reason why they fear it so. This is also the main reason attorneys rely so heavily on demographics during jury selection - they mistakenly believe that demographics gives them at least some element of control. If their client is black, they feel that loading the jury with Blacks is the best way to stack the odds in their favor; if the case concerns child abuse, then elderly grandmother-types will be most desired.

The fact is that much of what attorneys do during voir dire is in response to their own fear. This is why so many attorneys always ask jurors the same insulting question during voir dire: "Can you be fair?" It is reassuring for them to hear a juror state in a courtroom that he or she can be fair, whether this will actually prove accurate or not. And it helps reduce the FEAR quotient.

Along this line, it is also reassuring to think that you can predict attitudes, opinions, and beliefs from race, gender, or age. It is reassuring to hear what you want to hear. It is reassuring to think you are in control during voir dire, even though you really never are. This need by attorneys to be constantly reassured during voir dire points up its essential truth: Voir dire truly is dire for many attorneys.

No Fear

To successfully achieve your goals during voir dire - to learn who the jurors are, what they believe, and how they are likely to feel about the primary case issues - it is essential to put your fears aside. This means that you must approach the jurors openly and forthrightly. You must be prepared to let the chips fall where they may (the essential point of voir dire, after all). You must assure the jurors through the questions that you use, and the manner in which you use them, that your only expectation is for them to speak honestly, i.e., to give truthful answers, and not answers they think judges and lawyers want to hear.

Remember: while it may be comforting to hear "nice" answers from jurors, it's critical to hear the honest ones. You must not be afraid of what the jurors will tell you during voir dire, and what they will reveal about themselves. It is only through such knowledge that you will be able to make intelligent choices regarding which jurors you wish to impanel, and those you don't want to include.

Getting Jurors to Open Up

You need good "people" skills for voir dire. This means that you must know how to let other people speak, and you must be able to listen to what they have to say. You can accomplish these modest-sounding goals by following a few simple rules:

• Never cut jurors off while they are trying to respond to your questions;
• Don't try to steer the conversation in ways you think may be good for you;
• Don't write responses down while the jurors are speaking;
• Pay attention to each juror as he or she speaks; avoid planning your next question while the juror is trying to answer your last one;
• Don't try to take control, or to "fix things" if a juror says something you don't like; don't try to "rehabilitate" a juror - it can't be done;
• Instead, thank a "problem" juror for being open and honest; signal the other jurors that they have nothing to fear by revealing their own likes and dislikes;
• Finally, treat all jurors, regardless of their answers, with courtesy and respect.

Structure Voir Dire as a Collective Social Conversation

Voir dire should be treated as a collective social conversation. When one juror responds to a question, ask the next juror how he or she feels regarding what the previous person had to say, then poll the remaining jurors so they each can weigh in with their own opinions. Don't concentrate on any one juror - be aware of the whole panel instead. Keep the conversations moving from beginning, to middle, to end.

It's important to point out that group conversations by jurors during voir dire should not differ substantially from what will likely take place later during deliberations. It's the attorney's goal during voir dire to create a climate in which the jurors can speak as expansively as possible regarding how they feel about the basic issues they will be asked to judge later. Jurors are no different than the rest of us - they will be very willing to speak about themselves, and their attitudes and opinions, if given a chance.

Remember: when impaneling a jury, try to avoid "norm conformity." This means that if you encourage and/or reward individual opinions during voir dire, you'll also spark individual opinions during deliberations.

The Key to Voir Dire: Open-Ended Questions

As discussed, most close-ended questions have no place in voir dire; the opposite is true, however, for open-ended questions. Such questions focus on the jurors' values and beliefs, and how these highly personal principles relate to the case issues at hand. Open-ended questions generally begin with such phrases as, "What are your feelings about..." or "Please share your opinions concerning..." or "How would you characterize your beliefs regarding..." Such questions usually end with references to specific case issues, e.g., product liability lawsuits, medical malpractice cases, and so on.

I have found the following open-ended questions and related comments to be very effective in getting jurors to open up and honestly state their feelings:

• "What you have to say is very important. Can you elaborate?"
• "This is a tough issue to speak about, isn't it?"
• "Please tell me more about...."
• "That's a good point. Does anyone agree (disagree) with what has just been said?" (If so, why, or why not?)
• "I can see that you're thinking carefully about..."
• "Please tell me what you're thinking (feeling)."
• "Do you believe its OK that..."

Remember that asking the right questions during voir dire is only part of the puzzle. It's also essential to listen carefully to the jurors' responses. Pay particular attention when jurors respond with answers that include such words and phrases as "should," "must," "could have" and "ought to." These words and phrases are often used by jurors when they are discussing their core values in relation to the case issues: "Product manufacturers should..." or "The doctor could have..."

Summary

Psychologists and psychiatrists know that people will never open up and reveal their true feelings unless they feel confident that their responses will be fully accepted. It is your task during voir dire to build rapport with the jurors; to let them know that you are truly interested in learning about them, along with their values and beliefs; to reinforce among the jurors that you want to listen to them; and to let them know that you will not react judgmentally to what they have to say.

Therefore: Let the jurors speak, reinforce honesty, and never try to stifle "bad" comments. This is the most effective approach to use during voir dire. Through it, you can learn who the jurors truly are, and how they will, in all likelihood, consider your case.

II. Ohio Law of Jury Selection

by Jeffrey D. Boyd, Esq.

Ohio has one Revised Code, one set of Civil Rules, and one set of Rules of Evidence. However, it has 88 counties. Each of the counties has at least one, and as many as 30 or more, judges that preside over jury trials. Most of these counties have their own local rules. And most of the judges within a county have their own rules about how to pick a jury, many of which:

• Are not written down;
• Are not very flexible;
• May be based on "precedent,"[43] but not always on the law;
• Are based on the fact that they don't like voir dire, or lawyers conducting voir dire;
• Reflect that they don't want to spend a lot of time in voir dire;
• Are frequently designed to prevent lawyers from "contaminating" or "indoctrinating" jurors.
• All too often voir dire becomes a battle between a lawyer that wants to do voir dire one way and a judge who is determined to do it a different way.

The Basis of Voir Dire

The right to jury trial is "preserved to the parties inviolate." Civ. R. 38 (A). But trial by a jury composed of whom? Once those eligible[44] are called to service, who shall decide who sits on the panel? How should the right jury be selected?

Civ. R. 47 (A) states:

Any person called as a juror for the trial of any cause shall be examined under oath...as to his qualifications. The court may permit the parties or their attorneys to conduct the examination of the prospective jurors or may itself[45] conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by further inquiry.

Challenges for Cause

The bases for challenges for cause are stated in the Code:

# 2313.42 Causes for challenge of persons called as jurors; examination under oath

The following are good causes for challenge to any person called as a juror:

(A) That he has been convicted of a crime which by law renders him disqualified to serve on a jury;

(B) That he has an interest in the cause;

(C) That he has an action pending between him and either party;

(D) That he formerly was a juror in the same cause;

(E) That he is the employer, the employee, or the spouse, parent, son, or daughter of the employer or employee, counselor, agent, steward, or attorney of either party;

(F) That he is subpoenaed in good faith as a witness in the cause;

(G) That he is akin by consanguinity or affinity within the fourth degree, to either party, or to the attorney of either party;

(H) That he or his spouse, parent, son, or daughter is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against him;

(I) That he, not being a regular juror of the term, has already served as a talesman in the trial of any cause, in any court of record in the county within the preceding twelve months;

(J) That he discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as given to him by the court.

Each challenge listed in this section shall be considered as a principal challenge, and its validity tried by the court. R.C. # 2313.42, emphasis added.

Most fights concern subpart (J). It is usually clear-cut as to whether other sections apply, such as if a prospective juror is a client of either attorney. It is much more difficult to know when a judge will decide whether a juror can or cannot be fair. For some judges, the mere assertion by the juror that they can be fair is enough. For example:

Some judges will let this juror stay on the panel. Other judges look to whether, given the statements of the juror, it can be objectively stated that he or she can be impartial.[46] Berk v. Matthews (1990), 53 Ohio St. 3d 161, involved a jogger who was hit by a car. A juror was brought to the panel after the plaintiff had used all of her peremptory challenges. During the voir dire, the juror on several occasions stated she would be prejudiced against the plaintiff. The juror also stated, however, that she could listen to all the evidence, and the law, and make a fair decision. The juror was then challenged for cause, but the court refused to excuse her, despite the following dialogue:

The court of appeals agreed with the plaintiff that the trial court erred in failing to excuse this juror for cause. The Supreme Court, however, reversed:

[T]he trial court had the opportunity to observe the demeanor of the prospective juror and evaluate firsthand the sincerity of her responses to questions. On nine separate occasions the juror assured the court and counsel for the parties that she could be fair and impartial and would follow the law as it was given to her by the judge.

In reversing the decision below rejecting the challenge for cause, the appellate court disregarded the assurances given by the juror and, in essence, substituted its judgment for that of the trial judge. By so doing, the court of appeals failed to apply the appropriate standard of review. Berk, supra, at 169.

Constitutional Limits on the Use of Peremptory Challenges

Peremptory challenges were traditionally challenges the parties could use "to strike anybody they want to"[47] without explanation. Today, however, the right to strike is subject to some constitutional restrictions. The U.S. Supreme Court has held that neither race,[48] nor gender[49] may, without more, be the basis for excusing a juror. Jury selection procedures must be "fair and nondiscriminatory."[50] The Court correctly held:

Competence to serve as a juror depends on an assessment of individual qualifications and ability impartially to consider evidence presented at trial [citation omitted]....a person's race simply "is unrelated to his fitness as a juror."[51]

Automatic exclusion of jurors based on any "category" is probably error, see, e.g., Sowers v. Middletown Hosp. (1993), 89 Ohio App. 3d 572. ( Automatic exclusion of nurses and other medical personnel from medical malpractice juries is not within the realm of R.C. # 2313.42.)

So What May Be Asked?

The case law in Ohio tends to be a study of what may not be asked. The long-standing rule, as stated by the Ohio Supreme Court, is as follows:

[T]he purpose of the examination of a prospective juror on his voir dire is to determine whether he has both the statutory qualifications of a juror and is free from bias or prejudice for or against either litigant. Vega v. Evans (1934), 128 Ohio St. 535, paragraph one of the syllabus.

Judges have been granted broad leeway in governing the voir dire process:

[T]he control of voir dire questions is within the discretion of the court, [and so] a reviewing court will not interfere absent an abuse of that discretion, even though some of the inquiry is questionable. Dellenbach v. Robinson (1993), 95 Ohio App.3d 358,37210.[52]

Litigants, too, are given latitude in asking questions, but:

All questions in the voir dire examination must be propounded in good faith. The character and scope of such questions cannot become standardized, but must be controlled by the court in the exercise of its sound discretion, the court having for its purpose securing to every litigant an unbiased jury. Krupp v. Poor (1970), 24 Ohio St.2d 123, paragraph one of the syllabus, approving Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, paragraph three of the syllabus.

The "Insurance Question"

Ohio R. Evid. 411 states in part:

Evidence that a person was or was not insured against liability is not admissible upon the issue of whether he acted negligently or otherwise wrongfully.

Since insurance is irrelevant, and mention of it deemed to be prejudicial, does this mean that it can't be mentioned in voir dire? It does not. The interests of guarding against jury speculation on issues of "ability or inability to pay" as dictated by a party's insurance coverage[53] collide with the interests of trial by fair and impartial jurors. Just how insurance can be mentioned is an issue frequently addressed by the courts.

In the benchmark case Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, the Supreme Court held:

In the examination of a juror upon his voir dire in cases involving property damage, personal injury or both, he may be asked the general question whether he has or has had any connection with or interest in a casualty insurance company. If the answer be in the affirmative, the juror may then be asked the name of such company and the nature of his connection with our interest therein. The plaintiff has the right to interrogate prospective jurors on voir dire as to (1) whether they are connected with an insurance company; and (2) the extent of their connection, as long as these questions are propounded in good faith. Id., syllabus paragraph two.[54]

Even this limited right of plaintiff's counsel to inquire on voir dire as to a prospective juror's connection with an insurance company has been held to be subject to the sound discretion of the trial judge. Krupp v. Poor (1970), 24 Ohio St. 2d 123. In granting plaintiff's counsel a limited right to mention insurance on voir dire, the Supreme Court of Ohio has tried to strike a delicate balance between plaintiff's right to "...reasonable safeguards against obtaining a jury composed of men and women having insurance connection...," and defendant's right to a trial free from "...possible prejudice which interrogation concerning the jury's interests may tend to provoke." Dowd-Feder, Inc., supra, at 535.

The "insurance question" may be asked using non-standard (non-Dow-Feder) language. In Kovach v. Wren, Unreported Case No. CA-6418 (5th Dist., 1984), the Court of Appeals upheld the asking of the question - "Is there anyone here that is employed by an insurance company?" - holding that the trial court did not abuse its discretion in overruling appellants' objection and motion for mistrial.

Of course, the "insurance question" cuts both ways: the plaintiff may not attempt to lead the jury to believe there is insurance, and the defendant may not lead the jury to believe there is not insurance.

In DuPriest v. Spatz (1971), 26 Ohio St. 2d 264, defense counsel, in voir dire stated, "There is no insurance company involved in this case." The court held that, absent admonishments and instructions to the jury, the statement was clearly prejudicial because the statement would lead the jury to conclude "that any judgment rendered for the [plaintiffs] would wrest from [defendant] and his family whatever funds or property were necessary for the total payment thereof." Id , at 266.

The court in Stehura v. Short (1974), 39 Ohio App. 2d 68, succinctly posed the problem:

When defense counsel propounds a question on voir dire examination falsely implying that his client is uninsured, the potentially prejudicial effect on the prospective jurors is of such magnitude that instructions, three days later, by the trial court in its general charge to the jury, not directed to the specific improper remarks, are insufficient to cure the manifest prejudice occasioned by the jurors' exposure to the deceptive, and potentially prejudicial extrinsic statements. Such action constitutes reversible error. Id., syllabus. See also Shell v. Rolins, Unreported Case No. 3-82-21 (3rd Dist., 1983).[55]

A current hot topic today is whether the panel may be questioned regarding "tort reform." While leading Ohio courts have not yet specifically addressed the issue, in Barrett v. Peterson, 868 P.2d 96 (Utah Ct. App., 1993), the Utah Court of Appeals held that the plaintiff is entitled to know which potential jurors have been exposed to or influenced by "tort reform" information, and that the trial court's refusal to allow voir dire questioning on "tort reform" prevented the plaintiff from intelligently using peremptory challenges.

Conclusion

It is no news to experienced trial counsel that our Ohio judges have a great deal of control over how voir dire is conducted in their courtrooms. However, the Constitution, the Revised Code, and current case law, along with principles of fundamental fairness, can be invoked to ensure that clients get the best possible jury.

AS TRIALS BECOME MORE COMPLEX AND TECHNICAL, new legal specialties emerge to assist attorneys in the litigation process. One such new field is that of legal nurse consulting, comprised of professionals who advise attorneys on medical malpractice cases and similar disputes, and who serve as expert witnesses. Some legal nurse consultants are now branching out into the litigation research/trial consulting field. Dr. Singer's article fully details the various areas of expertise that legal nurse consultants must master to be able to provide professional trial consulting & litigation research services. This article is scheduled for publication in an upcoming edition of THE JOURNAL OF LEGAL NURSE CONSULTING.

[43] As in: "this is the way we have always done it."

[44] A person is qualified to serve as a juror if he is an elector of the county and has been certified by the board of elections pursuant to section 2313.06 of the Revised Code. A person also is qualified to serve as a juror if he is eighteen years of age or older, is a resident of the county, would be an elector if he were registered to vote, regardless of whether he actually is registered to vote, and has been certified by the registrar of motor vehicles pursuant to section 2313.06 of the Revised Code or otherwise as having a valid and current driver's or commercial driver's license. R.C. # 2313.42.

[45] Consider the quality of this court-conducted voir dire in a case where the plaintiff, a meter-reader, was bitten by a dog:

The Court: Good. Anybody else? Anybody hate dogs? Dogs, cats and Reagan. You either hate them or love them. Used to be Roosevelt, now it's Reagan. Number 6, Number 6, Natasha Bell, you hate dogs?

Ms. Bell: Yes.

The Court: There you go.

Ms. Bell: Yes.

The Court: All animals or just dogs?

Ms. Bell: Dogs, cats.

The Court: Dogs, cats and Reagan, okay. Is that going to influence you in a case like this?

Ms. Bell: Yes, it will.

The Court: Okay. Then, thank you, we'll excuse you. Anybody else a dog hater? How about the other way around, anybody such a dog lover, like my wife, who would think some poor doggy couldn't do anything wrong?

The Court: Anybody belong to the Humane Society like my wife? Okay. Only two things she'll kill are mosquitoes and houseflies. Okay. Anything else?

D'Andrea v. Ellison, Unreported Case No. 13622, (Ninth District, 1989). Although the court's questioning was a disaster, the case was not overturned on appeal because counsel did not object to the questions in the trial court!

[46] The United States Supreme Court has held in a civil case that a juror's failure to respond to a material question on voir dire entitles a party to a new trial only if the juror's failure to disclose denied the party his right to an impartial jury. McDonough Power Equipment v. Greenwood (1984), 464 U.S. 548, 78 L. Ed. 2d 663, 104 S. Ct. 845. The motives for concealing information may vary, the court noted, "but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." Id. at 556.

[47] Baston v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,1715, 90 L. Ed. 2d 69 (1986).

[48] Id.

[49] J.E.B. v. Alabama, 511 U.S. ____, 114 S.Ct. ____, 128 L. Ed. 2d 89 (1994).

[50] Id, at L. Ed. 97.

[51] Baston, supra, at S.Ct. 1718. And see Dr. Singer's opinion, infra, that race, gender, employment and many other "categories" are also unrelated to any predictable point of view that will be expressed in deliberations.

[52] A more complete discussion of the standard of review can be found in Berk, supra, where the court stated: the decision to disqualify a juror for bias is a discretionary function of the trial court. . . where a trial court is vested with such authority, reversal on appeal is justified only if its exercise thereof constitutes an abuse of discretion. In State v. Adams (1980), 62 Ohio St. 2d 151, 157....the applicable standard of review was defined as follows: "The term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable..." Consequently, when applying this standard, an appellate court is not free to substitute its judgment for that of the trial judge...Id, at 169.

[53] White v. Standard Oil Co. (1962), 116 Ohio App. 212.

[54] It is obvious that the Court intended Dowd-Feder to be a solid, if not final, pronouncement on this issue. Between 1929 to 1936, the Court appraised and reappraised the complicated and highly controversial struggle represented by the "insurance question" - see Pavilonis v. Valentine (1929), 120 Ohio St. 154; Vega v. Evans (1934), 128 Ohio St. 535; Dowd-Feder v. Truesdell (1936), 130 Ohio St. 530, 200 N.E. 762. Although this was a lot of "judicial churning,' Chief Justice Weygandt noted in his concurrence with Dowd-Feder, supra, that "possibly this pronouncement of the court may mark the adoption of a rule of sufficient permanency and practicality to be of some value to the bench and bar of the state in the solution of this seemingly interminable controversy."

[55] Jury trial was held to determine liability and damages for injuries sustained by the plaintiff in a two-car collision. The court directed a verdict on the issue of liability, leaving the jury to determine damages. The jury rendered a verdict in favor of plaintiffs for a combined total of $12,700. Appellants' assignments of error were based upon statements made by defense counsel concerning defendant's lack of liability insurance. Held: There was misconduct of counsel for defendant, brought to the attention of the court by plaintiffs during the voir dire examination and in final argument, whereunder counsel for defendant raised to the jury the suggestion that defendant did not carry automobile liability insurance and would therefore be responsible personally for the payment of any award made to the plaintiff.