Wednesday, October 30, 2019
"Med Mal 101: Back to Basics" is 12-part series produced by Friday, Eldredge & Clark. Written by the attorneys in the Medical Malpractice Group, the content will be delivered monthly via email and is designed to give physicians and other healthcare providers information they need to know about malpractice litigation.
Part 10 of 12:
The Jury Trial - Selecting a Jury
Citizens of Arkansas have a right to jury trial. [1] When a medical care provider is sued, he or she may demand a trial by jury, but this right may also be waived. [2] Typically, if a party does not demand a jury trial, the case will be heard by a judge, unless the court orders a trial by jury on its own. [3]  

A “bench trial” occurs when the case is tried to the judge, with no jury. In that case, the judge weighs the evidence and renders a verdict from the bench. 

In our state, almost all actions for medical injury are tried before a jury. In a jury trial, the judge answers questions of law and a jury answers questions about the facts of the case. 
With jury trials, a case is tried to a group of people who hear the case and render a verdict. Jurors are selected from a much larger pool of people called the “venire,” made up of those who appear for jury service.  The venire is comprised of those persons whose names appear on the current voter registration list or a combination of voter registration and driver’s license listings [4] In state court in Arkansas, unless otherwise agreed upon by the parties, the jury will ultimately consist of 12 people. [5]

The jury panel is selected through a process called “ voir dire .” [6]   During voir dire , attorneys for each party have the opportunity to ask the venire questions that help them decide who may be qualified to serve as jurors in the case. [7]   In some courts, however, the judge will question the jurors in addition to, or rather than, the attorneys. [8] Some jurors may be excused “for cause.” This typically means that the juror has some knowledge of the parties or the case, such that he or she may have a bias that might prevent him or her from being able to fairly weigh the evidence in the case.  Each side is also permitted to use three “peremptory strikes” to eliminate potential jurors from the pool based on reasons other than “cause.” [9]    Alternate jurors may also be selected in case an empaneled juror becomes ill or must be excused for another reason during the trial. [10]  
Once the jury is selected, they are then sworn “to well and truly try the case” and a “true verdict render.” [11]   Once the jury is sworn, the trial begins. 

Next month’s article will discuss the remaining parts of a jury trial through verdict.

[1] Ark. Const. art. II, § 7.
[2] See Ark. R. Civ. P. 38.
[3] See Ark. R. Civ. P. 39.
[4] How a Jury is Selected , Arkansas Judiciary, (last visited Oct. 28, 2019).
[5] See Ark. R. Civ. P. 48.
[6] What Happens the Day of Trial , Arkansas Judiciary, (last visited Oct. 26, 2019).
[7] Id.  
[8] See Ark. R. Civ. P. 47(a).
[9] What Happens the Day of Trial , Arkansas Judiciary, (last visited Oct. 26, 2019).
[10] See Ark. R. Civ. P. 47(a).
[11] See Ark. Code Ann. § 16-89-109 for the Arkansas Jury Oath.
The information was written by the attorneys in the  Medical Malpractice Group  at Friday, Eldredge & Clark, LLP.

This information is not a substitute for legal advice and should be considered for general guidance only. 

For more information, please contact one of our   Medical Malpractice Attorneys.
Medical Malpractice
Why Back to Basics?
In a recent study published in The American Journal of Surgery, the majority of general surgery residents surveyed felt that they were not aware of resources available to them in case of litigation. [1]

This is an unfortunate statistic since according to the American Medical Association, one in three physicians have been sued at some point in their career, and nearly half of physicians age 55 and older reported having been sued. [2]  

With this series, we will provide medical personnel practicing in Arkansas with a general overview of the legal process. We hope to dispel some common myths and to aid in a better understanding of what actually happens when a medical care provider is sued for malpractice. 
[ 1]  Beiqun Zhao, Luis C. Cajas-Monson, & Sonia Ramamoorthy, Malpractice Allegations: A reality check for resident physicians, 217 American Journal of Surgery 350-355 (2019).

[2]  Kevin B. O'Reilly, 1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit,  The American Medical Association (Jan. 26, 2018).
About the Firm

Friday, Eldredge & Clark, LLP serves business, non-profit, governmental and individual clients in Arkansas and across the United States. It is one of the oldest law firms in the state and has been the largest Arkansas-based law firm for more than 50 years. The firm has practice areas focusing on General Litigation; Class Action and Business Litigation; Railroad; Labor and Employment; Medical Malpractice; Public Finance; Healthcare; Estate Planning and Probate; Employee Benefits; Real Estate and Commercial Transactions; and Merger and Acquisitions. Friday, Eldredge & Clark has offices in Little Rock, Fayetteville and Rogers, Arkansas.
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