Voir Dire On Captive Counsel

A request for a voir dire question that identified defense counsel with the insurance company that had retained the firm was not improper, according to a recent decision of the West Virginia Supreme Court of Appeals. The court concluded that the trial judge had struck a fair balancing of competing interests in the fashioning of voir dire questions, by asking a separate question as to juror knowledge of or affiliation with the insurer:

” Although we conclude that questioning regarding a juror’s affiliation or knowledge of ‘Nationwide Trial Division’ is a proper voir dire question in order to discover any potential bias, we are cognizant of concerns that a juror’s association of a defendant’s attorney with an insurer could lead a juror to assume that liability insurance is available to satisfy any verdict. While such concerns may be exaggerated and not the parade of horribles we are asked to presume in this case, we agree with a different method used which permits the identification of possible juror bias during voir dire while minimizing any potential for prejudice to insurers who choose to utilize captive counsel. As disclosed to this Court by Nationwide in its Petition for Writ of Prohibition, the Honorable James P. Mazzone, Judge of the Circuit Court of Ohio County, fashioned what we believe is a balanced approach to obtain the required information regarding juror knowledge or affiliation with Nationwide Trial Division and to minimize the potential for the jury concluding that insurance coverage is available to satisfy any verdict due to defense counsel being associated with an insurer. In Chiplinski v. Sampson, Ohio County Civil Action Number 04-C-26, a case involving a direct claim against an insured, Judge Mazzone inquired of the juror’s affiliation with Nationwide Trial Division without associating Nationwide Trial Division with defense counsel’s office.

            By asking separate and distinct questions, the potential for jurors to associate defense counsel with an insurance company is minimized and relevant, appropriate and necessary voir dire regarding juror bias is conducted. Such an inquiry is permissible whether captive counsel is representing an insured or defending an uninsured or underinsured motorist claim. Accordingly, we now hold that where an insurance company’s captive law firm is involved in a trial in the circuit courts of this State, a voir dire question disclosing the identity of the insurer with whom captive counsel is associated may be asked. The manner of identifying the insurer should be in the same manner as the captive firm otherwise identifies its affiliation with the insurer. However, in order to minimize any potential for juror bias arising from the association of captive counsel with an insurer, including any juror assumption regarding the existence of liability insurance to satisfy any potential verdict, there should be separate questions regarding captive counsel and the insurer with whom captive counsel is associated. In the instant matter, the trial court may properly ask the jury proposed voir dire question 12 provided that the phrase ‘Nationwide Trial Division’ is eliminated from the question. A second similar question may be asked with respect to Nationwide Trial Division such as: ‘Do any of you know or have experience with Nationwide Trial Division, its attorneys, paralegals, secretaries, and other office staff, or their spouses, children, parents, brothers or sisters?’ ” (Mike Frisch)