January 08, 2019 Practice Points

How to Avoid the “Big Oops” at Trial: Waiver of a Batson/Edmonson Challenge

Properly addressing any signs of discrimination in the selection of jurors by timely asserting the Batson/Edmonson challenge in court will ensure that you are protecting your client’s right to a fair and impartial civil trial

by Chauntis Jenkins Floyd

Preparing to defend an insurance bad faith or coverage case at trial requires extensive preparation and developing an intimate knowledge of every document, witness, and the strengths as well as the weakness in your case. You have to be prepared to use every relevant and appropriate trial tactic to your advantage. Voir dire is the first chance to present the theory of your case to the jury and to build a rapport with potential jurors. This experience can be somewhat stressful because there are several important trial tools that you must be prepared to use during voir dire while the focus is completely on you rather than your witnesses or evidence.

One of these important tools is the use of a peremptory strike of a juror. It is a necessary tool that every litigator must be prepared to use during the selection of a jury. Another equally important trial tool that many attorneys are often reluctant to raise is the Batson/Edmonson challenge articulated in the landmark Supreme Court cases of Batson v. Kentucky, 476 U.S. 79, 96, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69 (1986), modified by, Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), and as extended to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 614, 111 S. Ct. 2077, 2079, 114 L. Ed. 2d 660 (1991). This challenge often goes unused or waived in civil cases because it requires one to openly assert that their opposing party has used peremptory strikes to discriminate against potential jurors. It creates the potential for judicial hostility or backlash for raising this challenge or frustration with the court’s failure uphold such a challenge. Failing to raise this challenge in a timely manner is a common mistake that can be avoided. There is nothing worse than waiving this important challenge than realizing later you’ve also waived the opportunity to raise it on appeal. The following are a few substantive and procedural practical tips to help you avoid waiving the Baton/Edmonson challenge and to help ensure a successful selection of the best jurors for your trial:

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