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New law effective Jan. 1 defines who must serve
There is a new law controlling jury duty. It is Chapter 1159 of the 2008 Public Acts, effective Jan. 1, 2009. All competent adults summoned must serve unless excused.
Some folks are incompetent and may not serve. Among those are infamous felons, including perjurers. A person "interested" in the case cannot serve. Close relatives of parties (within the sixth degree computed by the civil law) are likewise ineligible.
Probably the portion of the act of most interest to the judiciary and our profession and the public is revised Tenn. Code Ann. §22-1-103 on excuses. Subsection (a) is simple: a medical doctor's documentation will excuse a person who has "a mental or physical condition that causes the person to be incapable of performing jury service."
Subsection (b) is complex. It deals with excusing a person upon a documented showing that "such person's service will constitute an undue or extreme physical or financial hardship to the prospective juror or a person under the prospective juror's care or supervision." What is undue or extreme physical or financial hardship?
- cannot leave a person dependent on your caregiving,
- daily living expenses impacted,
- physical hardship would result in illness or disease, or
- employer not required to compensate during absence.
For sole professional practitioners, a former absolute exemption is eliminated. Financial hardship does not exist "solely" upon absence from the workplace.
What documentation is required to be excused based on hardship? The act lists "income tax returns, medical statements from licensed physicians, proof of dependency or guardianship, an affidavit stating that the person is unable to obtain an appropriate substitute caregiver during the period of participation in the jury pool or on the jury, or similar documentation that the judge finds to clearly support the request to be excused."
Persons excused for hardship normally become eligible to serve "following the period ordered by the court, which shall not exceed 24 months." But the judge has discretion to find that the hardship grounds "are of a permanent nature."
Summoned jurors without excuses can request a postponement. But they must designate a date within one year when they will appear.
Finally, the new legislation provides a retaliatory discharge cause of action. The fired worker gets reinstatement, lost wages, and lost work benefits. But you as the plaintiff's lawyer should also plead a common law claim based on Hodges v. S.C. Toof & Company, 833 S.W.2d 896 (Tenn. 1992).
We need all able citizens to serve in our jury trials. This revision will help achieve that goal.
1. Women could not serve on Tennessee juries until May 1, 1951. See Chapter 71 of the 1951 Public Acts. If summoned to duty, a woman had a right to be excused.
DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.