Court Allows Juror Rehabilitation Through Use of “Magic Questions”; Wallick v. Inman

Voir dire is a critical stage of any trial. Lawyers often feel like they do not have enough time to voir dire. And things can seem even worse if the trial court attempts to rehabilitate a juror every time you establish cause to strike. But those attempts do not necessarily mean that you have an unfair trial.

Wallick filed a medical malpractice claim against Inman, and the matter proceeded to a nine-day jury trial. During voir dire, the trial court informed the jury that a medical malpractice claim would be tried, and that Wallick had the burden of proving his claim by the greater weight of the evidence. Wallick then proceeded to question the first fourteen potential jurors. Many of the potential jurors indicated that they were uncomfortable with this standard of proof in a medical malpractice case. At the conclusion of Wallick’s voir dire, the trial court asked the jury if they could set aside their personal beliefs about the burden of proof and could follow the court’s instructions. The jurors indicated that they could do so, and the trial court denied Wallick’s motion to strike most of these jurors for cause. The jury entered a verdict for Inman, and Wallick appealed.

On appeal, Wallick argued that the trial court abused its discretion when it denied his motion to strike these jurors for cause. In general, these jurors indicated that they believed that Wallick should prove his case by more than the greater weight of the evidence. Wallick argued that the trial court’s rehabilitation of these jurors by asking a “magic question”—whether they could set aside their beliefs and follow the court’s instructions—“was ineffective and only resulted in the individuals giving meaningless, empty promises.” But the Court found that Indiana law did not preclude such rehabilitation.

The trial court observed these jurors, and “we will not second guess its determination that they were sincere” in indicating they would follow the court’s instructions. Based on the record before us, we find that the trial court did not act illogically or arbitrarily when it denied Wallick’s for-cause challenges to the five individuals who initially indicated they would want or prefer to see a higher burden of proof than the required “greater weight of the evidence” standard applicable in medical malpractice cases.

Wallick’s argument on appeal was supported by cases from other jurisdictions. It will be interesting to see whether a different litigant will make a similar argument in a future case—or whether the Indiana Supreme Court may take this issue on transfer.


  1. Appellate courts will defer to a trial court’s observation of potential jurors when reviewing the denial of a motion to strike for cause.
  2. If a juror is rehabilitated by “magic questions” asking if the juror can follow the court’s instructions, then this will go a very long way to support a denial of a motion to strike for cause on appeal.

Contact Us Today

refer a case or discuss co-counsel opportunities

Contacting this law firm does not create an attorney-client relationship. Do not provide confidential information until an attorney-client relationship has been established.