Justia Lawyer Rating
Taos Badge
Litigator Awards Badge
Public Justice Member Badge
Million Dollar Advocates Forum Badge
Top 40 under 40 badge
Top 100 badge
Pound Civil Justice Institute

The Litigant's Absolute Right to Backstrike Until the Panel is Sworn

While the law on backstriking has been settled for over three decades, some judges still resist the right of a party to exercise unused peremptory challenges against members of the panel after conditionally accepting the panel and moving to the selection of alternates. Any practice, including piecemeal swearing-in of the jury panel, which seeks to limit or impair a party's ability to backstrike (including with the opportunity to "view as a whole the entire panel from which challenges are to be made") is improper and impermissible. Tedder v. Video Electronics, Inc., 491 So. 2d 533, 535 (Fla. 1986); Florida Rule of Civil Procedure 1.431(f).

The prohibition against the piecemeal swearing of jurors also prohibits the swearing of the jurors selected to serve on the main panel prior to the selection of alternates. In the case of Szymanski v. Cardiovascular Assocs. of Lake County, P.A., 62 So. 3d 649 (Fla. 5th DCA 2011), the Fifth District Court of Appeal reversed a trial judge who compelled a litigant to choose between having the first 6 jurors sworn before proceeding to the selection of alternates or waiving the right to backstrike during the process of selecting alternates. The Fifth District wrote:

Here, at Appellee's instance, the court adopted a procedure that deprived Appellants of a valuable right by offering them only two choices, neither of which was proper. One of these choices required Appellants not to exercise a challenge of any of the first six jurors. The other required a piecemeal swearing of the jury. While objecting volubly and consistently, Appellants did as was required by the court by selecting one of the only two objectionable options they were given...

Szymanski v. Cardiovascular Assocs. of Lake Cty., P.A., 62 So. 3d 649, 655 (Fla. 5th DCA 2011)

A party's right to backstrike against the main panel before the jurors are sworn is absolute even if alternate strikes have been used during the selection of alternates for the jury. Lottimer v. N. Broward Hosp. Dist., 889 So. 2d 165, 167 (Fla. 4th DCA 2004) ("A party may exercise an unused peremptory challenge at any time prior to the jury being sworn. This is so even if the main panel has been accepted, the parties are selecting alternates, and one party chooses to exercise an unused peremptory to a juror on the main panel."). The right to backstrike at any time and with a view of the panel as a whole also precluded a trial court from forcing a party with two remaining peremptory challenges to choose between not exercising a backstrike or accepting the removal of the individual sought to be stricken contingent upon the replacement of that individual with the first selected alternate. Van Sickle v. Zimmer, 807 So. 2d 182 (Fla. 2d DCA 2002).

In order to preserve appellate review of a trial court's failure to permit the use of an available peremptory challenge as a backstrike, the party must identify the prospective juror sought to be stricken and assert or re-assert the party's objection to the panel prior to the swearing of the jury. Aquila v. Brisk Transp., L.P., 170 So. 3d 924 (Fla. 4th DCA 2015).

Client Reviews
Bruce L. Scheiner and his team were the most friendly people I've ever met they genuinely cared about me... I highly recommend them Brooke Krause
I was really satisfied with services I received. Bruce is not only an attorney, but like family. He got me three times what I thought I would receive and was always there when I needed an answer on something. I'd say he is the best attorney I have dealt with in my 68 years. Harry Zulauf
I found working with the BLS firm to be a very good experience. They kept me informed on my case, answered all my questions, and were prompt when I needed assistance. Wendy Walker
I was in an accident and BLS was very helpful and gave a lot of support. If I had any questions, it was just a phone call away. Everyone in the office is very nice and helpful. Celeste Thompson
We had a wonderful experience with everyone here. The staff and attorneys were friendly, knowledgeable, and compassionate. They inquired about our injuries and our recovery. I would highly recommend their services! Heather Bair Daniels
I have nothing but good things to say about this law firm. I can honestly say that I am very satisfied with their work and my end results. I would absolutely recommend these set of attorneys to anyone. Thank you guys for all the hard work! Merida McDonald
BLS was incredibly helpful with my case, even during the hard challenging periods of my case Bruce & PJ were always just a call away. Even though they couldn't answer my call at that direct moment, they ALWAYS made a point to call me back. The staff at Associates and Bruce L. Scheiner were always helpful and friendly, if they didn't have the answer they would always call me back with what I needed to know. Robert Drawdy
I was in a car accident and I seen his Advertisement on TV and I was very impressed of how kind and caring he really is to others and I called them and they took my case and they were very caring and understanding .. they were right on top of everything from being to end and the staff that works in the Fort Myers office were very friendly I would recommend them to a friend or family member if in need of a attorney... Thank you for your services and you made me feel like part of your family. Christina Mauro