Courts in Ohio have been reluctant to create a rule of equalization of peremptory challenges among all parties in multi-defendant cases and therefore, a plaintiff must take control of the situation at the earliest possible stage. In LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 512 N.E.2d 640 (1987), the Ohio Supreme Court held, and defined broadly, that pursuant to Civ.R. 47(C) entitles multiple defendants to their own set of peremptory challenges if the position of the defendants is different or antagonistic to the other. Plaintiffs, facing the proposition of the defendants having peremptory supremacy during voir dire, often challenge this concept. Rather than attempting to limit the defendants’ access to multiple allotments or impose a rule of automatic equalization of peremptory challenges, a savvy plaintiff could exercise the right to receive a separate allotment of peremptory challenges for each plaintiff, but must consider this issue before filing the complaint.
In fact, in Nieves v. Kietlinski, 22 Ohio St.2d 139, 51 O.O.2d 216, 258 N.E.2d 454 (1970), the Ohio Supreme Court found that multiple plaintiffs could be considered a single party for the purposes of determining the proper number of peremptory challenges. The Ohio Supreme Court held that “[w]here several plaintiffs voluntarily join in a common petition under the joinder provisions of R.C. 2307.191, predicate each cause of action upon the same statement of facts, employ the same attorneys and allege interests each identical to the other, except as to degree of injury and amount of damages, such plaintiffs constitute only one party.” Id. at syllabus two. The converse is equally true, multiple plaintiffs could be considered separate and awarded multiple peremptory challenges if those conditions are not met.
Consider a cause of action with multiple plaintiffs and defendants, especially in cases where the defendant could seek to apportion liability to some of the plaintiffs; the plaintiffs will have antagonistic positions. For instance, in a medical malpractice action founded on negligence in delivering a child, if the defendant could assert the birth parents were also negligent, the child would have an antagonistic position towards her parents. In this extremely simplistic hypothetical, the parents and child should seek their own allotment of peremptory challenges to equalize the peremptory challenges during voir dire rather than attempting to limit the defendants’ claims to separate allotments pursuant to LeFort. As in LeFort, if those hypothetical plaintiffs can demonstrate that the their claims do not stand and fall together, the plaintiffs should be entitled multiple allotments of peremptory challenges, achieving the desired result of equalizing the distribution of peremptory challenges for the purposes of trial.
In situations involving multiple plaintiffs, the framing of the complaint and use of separate legal representation against multiple defendants will be an important consideration. If it could be anticipated that those defendants will seek to monopolize the jury selection through exercising the right to peremptory challenges solidified in LeFort, a plaintiff must consider that issue before filing the complaint.
