The insurance question is perhaps the most debated question of voir dire. It allows the plaintiff’s attorney to ask the jury panel if they, or any of their family members, are employed or have a financial interest in whatever insurance company is indemnifying the defendant. See Ivy v. Hawk, 878 S.W.2d 442. We all know insurance almost always indemnifies the defendant for any verdict but the jury is not supposed to know. What follows is the basic procedure on how to handle getting approval of what you can say and what to do if someone asks follow up questions. A proper review of the approval for the question is also discussed in Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 871 (Mo. Banc 1993).
Get the Court’s Approval
Before asking the jury pool about insurance, you must make sure you get the Court’s permission to do so. It is recommended that you file a motion with the Court requesting permission to ask the question about insurance and include the form of the question, verbatim. Below is an example of one we asked in a recent trial in the city of St. Louis:
COMES NOW Plaintiff and offers the following “insurance question” for use in voir dire, and it will not be asked as the first nor last in a series of questions so as to avoid unduly highlighting the question to the jury panel, as approved in Ivy v. Hawk, 878 S.W.2d 442, (Mo. 1994): “Do any of you or do any members of your family work for or, have a financial interest in, State Farm Automobile Insurance Company?” Any positive responses will be noted without any direct follow up questions at that time, and such shall be addressed at the bench at a later recess out of the hearing of the jury.
We filed this request several days before the trial and specifically addressed the issue with the Court before the jury entered for questioning. You MUST make a record of the question and the fact that you received approval from the Court. See Yust v. Link 569 S.W.2d 236,239. It is important to note that you can have no follow up and cannot make this question your first or last question or highlight it in any manner. Additionally, the form of the question is left to the discretion of the Court but it is recommended to put it in writing and stick to it.
Handling Follow Up from the Panel
Undoubtedly, there will be a juror or two who either didn’t hear or needs clarification on the question. At this point and before you answer, you should almost always defer to the Court. If you attempt to handle it yourself, you run the risk of blowing the panel and getting the case mistried.
If a juror still has trouble and doesn’t understand, request that they approach the bench. Whatever you do, make sure you do not highlight this questioning. If a juror wants to spout on and on about the insurance company, let them. But do not follow up. Simply say “Thank you” and move on. The law requires that you stick to this procedure to ensure there are no prejudices involving the insurance companies.
Throughout voir dire, jurors will bring up insurance without your prodding. They will talk about their experiences in dealing with insurance companies in car crashes, in slip and falls, etc… Almost all will say “The insurance companies just worked it out.” It will be plainly obvious to the jurors that insurance is involved yet, as the plaintiff’s attorney, you are only allowed one mention. That is it.