Massachusetts has become the 40th state to permit attorney-conducted voir dire in Superior Court jury trials. The recently enacted legislation modifies the statute governing voir dire practices, M.G.L. c. 234, §28, in pertinent part, as follows:
(1) In addition to whatever jury voir dire of the jury venire is conducted by the court, the court shall permit, upon the request of any party's attorney or a self-represented party, the party's attorney or self-represented party to conduct an oral examination of the prospective jurors at the discretion of the court.
(2) The court may impose reasonable limitations upon the questions and the time allowed during such examination, including, but not limited to, requiring pre-approval of the questions.
The judge-conducted voir dire system involves a written jury questionnaire, which is completed by each juror and provided to counsel, followed by general inquiries made from the bench to the jury venire as a group. If a juror responds in the affirmative to a general inquiry, the judge may question the juror further at side bar to ascertain whether the juror can serve as a fair and unbiased member of the jury. While trial counsel may submit proposed voir dire questions to the trial judge for consideration, it is within the trial judge’s discretion to put such questions forth to the potential jurors.
The plaintiffs’ bar has advocated for this new legislation for decades. The general sentiment amongst plaintiffs’ counsel practicing in the Superior Court system in Massachusetts has been that the current judge-conducted voir dire is not sufficient to eliminate jurors from the panel who have a pre-existing bias against plaintiffs or have a general distaste for the perceived overly litigious civil system. Common criticisms of the current judge-conducted voir dire system are that the questions presented to the jury are too vanilla and are unlikely to elicit honest responses from jurors which would be helpful to counsel in ascertaining juror bias and that jurors are more likely to be forthcoming when the questions are presented by trial counsel rather than the trial judge.
On the other hand, the judiciary has almost unanimously opposed the new attorney-conducted voir dire system. Trial judges argue that the new legislation will slow down the already overburdened judicial system. Judges also claim that the new system will result in substantial costs for the Commonwealth and businesses in the state, as thousands of additional juror summonses will be needed annually and employers will be forced to pay employees for more frequent jury service.
The new statute is set to become effective in February 2015. Many questions remain about how the new law will be implemented. The statute leaves to the discretion of the trial judge the specifics of the new attorney-directed voir dire. The policies, practices and procedures to be used are not specifically outlined in the statute and it is not clear if the procedures will be uniform throughout the Superior Court department, within each county or even within each courthouse. A significant learning curve for judges and trial counsel alike is to be expected. The Massachusetts Supreme Judicial Court has formed a committee to work with the Superior Court judges to make recommendations and provide guidance regarding best practices for implementation of the new voir diresystem.
Trial counsel with trial experience in other states, such as Connecticut, New Hampshire and New York, with similar attorney-conducted voir direwill be instrumental in navigating this new aspect of litigation in Massachusetts. Several of Melick & Porter’s litigation team have significant experience in other jurisdictions with attorney-conducted voir dire and will provide invaluable insight to fellow trial counsel on this new and developing practice.
Attorney John Rooney has over 30 years of trial experience in Massachusetts, Connecticut and New Hampshire. It has been his experience that the current judge-conducted voir dire system has resulted in fair and impartial juries. However, with the new attorney-conducted voir dire system on the horizon, his experience in other jurisdictions has provided insight. He notes that attorney-conducted voir dire tends to double the length of a civil trial, increasing the time and cost associated with trial for all parties. Attorney-conducted voir dire also presents particular hazards for unprepared trial counsel.
In his own practice, Attorney Rooney keeps two objectives in mind when preparing for attorney-conducted voir dire: “First, to make sure the prospective juror can be impartial and came to the case without any preconceived notions or prejudices on the type of liability or damages involved in the case. Second, and this is the major advantage to attorney-conducted voir dire, I use the questioning and interaction as an opportunity for the jurors to get to know me, to humanize and personalize my client, and to be able to understand why I ask the questions I do at trial. The personalization resulting from attorney-conducted voir dire should always inure to the client’s benefit, and for this reason I believe it has utility.”
Another seasoned litigator, Attorney William L. Keville, Jr., who has also tried cases in other jurisdictions with attorney-conducted voir dire, notes that attorney-conducted voir dire is certainly uncharted territory in Massachusetts and that a period of adjustment will be necessary to determine how best to implement the new statute. Attorney Keville notes that it will be critical for judges to “find a middle ground between questions properly geared toward ferreting out bias and questions aimed at swaying the jury on the ultimate issue in the case.” The purpose of voir dire is to seat a fair and unbiased jury, not to seat a jury predisposed to find for one side or the other.