Lawyer Voir Dire: Coming to a Court Near You?

A new law signed this week has at least the potential to improve jury trials in Massachusetts by permitting lawyers to make more detailed inquiries of potential jurors to help identify those who are unsuitable for a particular case.  Chapter 254 of the Acts of 2014 expands the availability of voir dire, the process  by which jurors are questioned about their background and opinions in an attempt to make sure that the jurors who are seated are not predisposed to find for one side or the other.

Most other states permit lawyers to question jurors directly and extensively in a voir  dire process that often takes several days in a significant case.  In some states, the process even takes place outside the presence of a judge, who remains available to resolve disputes among the lawyers.  Lawyers who practice under that system strongly endorse the voir dire system as a necessary component of a fair and balanced judicial system.

Massachusetts, however, has always stood apart from those states.  Until fairly recently, all questioning of prospective jurors was done by the judge, and the questions were addressed to the entire group, rather to individual jurors.  Indeed, the judge was only required to ask four “statutory” questions–whether the juror could be fair or had any interest in the outcome of the case.  Those questions are so bland and general that an affirmative response was quite rare.

In recent years, most judges have been inclined to ask additional questions tailored to the particular case, often in response to suggestions from the lawyers.  Encouraged by appellate decisions that required individual questioning in certain types of criminal cases, some judges have experimented with individual questioning in major civil cases as well.  And some have even permitted lawyers to ask follow-up questions directly to a juror, instead of using the judge as a conduit.  Still, the process has remained quite limited compared to other states, and tightly controlled by the presiding judge.

The new law requires the court to permit lawyers to conduct voir dire on request, subject to “reasonable limitations” imposed by the trial judge.  Interestingly, the final version of the bill as passed does not contain language present in an earlier version that would have permitted judges to require lawyers to submit the questions in advance.

Reaction to the bill has been mixed.  Lawyers for personal injury victims, feeling that tort reform publicity has tainted many prospective jurors and predisposed them to reject meritorious claims, have applauded the new law, while defense lawyers, content with the status quo where most jurors are defense-oriented, have been more measured in their response.  Perhaps most disturbing, though, was the initial reaction of the judiciary, which opposed the bill on the basis that it would add time and expense to superior court jury trials.  Perhaps so, but if the result is that biased or otherwise unsuitable jurors are identified and excluded from service, and cases are tried to truly impartial jurors, the extra time would be well spent.

New Hampshire Court Supports Voir Dire

While affirming a verdict for the defendant in a slip-and-fall case, the New Hampshire Supreme Court reinforced the principle that parties in that state’s courts are entitled to a reasonable opportunity to select a fair and impartial jury.  The Court’s decision in Dukette v. Brazas held that, while the plaintiff had not properly preserved her claims of error, the jury selection procedures followed by the Superior Court were less than optimal, and in some ways, apparently not compliant with state law.

In 2010, New Hampshire joined the vast majority of states in permitting so-called “lawyer-conducted voir dire“–an opportunity for lawyers to speak directly to the panel of prospective jurors and to ask questions to elicit any bias or pre-conceived notions that might make a juror unsuitable to sit on the particular case.  Widely recognized by lawyers and commentators as crucial to the selection of a truly impartial jury, this type of voir dire has long been the standard in virtually every state–Massachusetts remaining a notable exception.  The New Hampshire statute implementing voir dire, RSA 500-A:12-a, permits counsel to address the prospective jurors to describe the claims, defenses and other issues in the case, as well to question individual jurors about their possible prejudices.

However, the trial judge in Dukette, apparently not a fan of the new law, issued an order requiring counsel to submit proposed voir dire questions in advance, and directing that the questions be posed to the jurors individually at the side bar, out of the hearing of other jurors.  Plaintiff’s counsel appealed to the Supreme Court even before the trial started, successfully obtaining an opinion that the questions need not be submitted before trial.  The Supreme Court declined to address any other issues at that time.

After a defense verdict, the plaintiff again appealed, claiming it was error for the trial court to refuse him an opportunity to address the entire panel to summarize the case and the issues, and again asserting his right to question the entire panel as a group.  Holding that the plaintiff had not properly preserved the issues for appeal, the Supreme Court nevertheless decided to “take this opportunity to remind trial judges to comply with the requirements established by the legislature when conducting jury voir dire.”  In essence, the Court agreed with the plaintiff’s lawyer that he should have been permitted to speak to the entire panel as a group.

In a separate concurring opinion, Justice Carol Conboy agreed with the plaintiff that her lawyer should have been permitted to question the jurors as a large group, arguing that that process, which the majority conceded was permitted by the statute–would be both more effective and more efficient than the process employed by the trial judge.

Read the New Hampshire Supreme Court’s decision in Dukette v. Brazas here.

What a Difference a Mile Makes

Last week, I wrote about a Massachusetts Appeals Court decision that did a lot more than pay lip service to the constitutional principle that jurors must not be excluded from juries based on race, gender, religion or national origin.  In Commonwealth v. Povez, the state Appeals Court reversed a second-degree murder conviction because it was concerned that the prosecutor’s stated reason for challenging a Hispanic juror was not “genuine.”  While it would have been a simple matter for the court to rubber-stamp the trial judge’s decision allowing the challenge to stand, even though she expressed some reservations, the court instead focused on the inconsistency between the judge’s subsidiary finding that the proffered reason was not genuine, and her failure to disallow the challenge, noting that the jury selection process needed not simply to be fair, but to appear fair.

Over in federal court, however, there seems to be much less concern for appearances.  A recent decision from the First Circuit demonstrates a court that went to great lengths to uphold the  trial court’s allowance of a peremptory challenge, under circumstances that hardly pass the red-face test.  In United States v. Mensah, the federal appellate court upheld the exclusion of two Asian-Americans from the jury in an immigration case.

Calling the issue “close,” the First Circuit accepted the prosecutor’s stated reason that he had challenged one of the Asian-American jurors because she was “young and single” and he questioned her “limited life experience.”  Another Asian-American juror, a professor at Boston University Medical School, had previously been challenged as being potentially “too scientific” in his application of the reasonable doubt standard.  In neither case was the prosecutor asked, nor did he  explain, how his ostensibly group-neutral reasons related to the immigration case to be tried.  In addition to the two Asian-American jurors he successfully challenged, the prosecutor also attempted to challenge an African-American juror based on her distant relatives “who were involved with criminal offenses”–while leaving untouched a white juror with a friend in jail.  This challenge was withdrawn when the judge stated that he was “inclined to agree” with defense counsel’s assertion that the challenge was racially motivated.

In upholding the trial judge’s allowance of the challenged challenges, the appellate court noted that “ideally,” the judge might have gone a step further, and pressed the prosecutor to explain not only the coincidence of strikes against the only two Asian-Americans, but the connection between youth, marital status, and the immigration case.  Noting that both inferences–racial discrimination and neutral reasons–were equally plausible, the court declined to reverse the trial judge.  Unlike the state court in Povez, there was no apparent consideration of, or concern for, the appearance created by the government’s actions.

The two decisions, a few days apart, but reaching diametrically opposite results on similar facts, again underscore that federal court is not a place that most lawyers representing underdogs want to be.   The lengths to which the First Circuit went to uphold two challenges that, frankly, reek of discriminatory intent, make the state Appeals Court’s decision all the more remarkable and commendable.

Read the First Circuit’s decision in United States v. Mensah here.

Jurors and Fairness

A recent opinion from the Appeals Court provides a strong reminder of the restrictions on the use of peremptory challenges to strike jurors based on race, ethnicity, gender or religious preference.  In Commonwealth v. Povez, the court reversed a second-degree murder conviction, finding that there was doubt as to whether the prosecutor’s proffered reason for challenging a Hispanic juror was genuine.

Challenges to the impermissible use of peremptory challenges most often arise in criminal appeals, but the principles apply with equal force to civil cases.  The Povez decision succinctly outlines the procedure judges and lawyers should follow in situations where there is a question with respect to the use of a challenge.

The constitutional prohibition against the use of peremptory challenges to exclude members of protected classes from a jury was recognized in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), and Batson v. Kentucky, 476 U.S. 79 (1986).  Since then, many cases have reviewed judicial decisions allowing or denying particular challenges, and the procedure is well-established.  When counsel for a party believes that an opponent is systematically excluded members of protected classes from a jury, counsel may ask the judge to make a preliminary finding of discrimination, and to demand that the opponent proffer a neutral, non-discriminatory reason for challenging the juror.  Over the years, the law has become refined so that, when racial and ethnic minorities are scarce, even a single challenge can constitute a “pattern” that warrants explanation.

Once the issue is raised, the trial judge is obligated to make a finding of whether a prima facie case of improper exclusion has been shown, and if such a finding is made, require the party seeking to exercise the challenge to state a reason for the challenge.  The judge must then rule on whether the reason is adequate.

Povez focuses on the judge’s assessment of the prosecutor’s proffered reason for challenging one of two Hispanic jurors on the venire.  Past cases have established that the explanation met be clear, reasonably specific, and personal to the juror.  For the most part, “gut feelings” or hunches will not suffice, nor will stereotyped assumptions based on the juror’s group affiliations–even if those affiliations are not based on race, gender or ethnicity.

But as Povez reminds us, even an explanation which is clear, specific and personal will not automatically pass muster.  In addition, the trial judge must find it to be genuine–that is the true reason for the challenge, and not a pretext to conceal discrimination.  And that’s where the prosecutor foundered.  The judge expressed her doubts that the explanation–that the juror’s father worked as a janitor in the federal courthouse, and thus might have “inside information” about court procedures in state court–was genuine.  Nevertheless, she permitted the prosecutor to exercise the challenge.

The Appeals Court reversed, finding a conflict between the judge’s expression of doubt that the reason was genuine and her allowance of the challenge.  Given her finding that she did doubted the genuineness of the prosecutor’s explanation, the trial judge needed to explain why she nevertheless permitted the challenge.  In the absence of such an explanation, the Appeals Court felt constrained to reverse the conviction.  Fueling the reversal was the court’s clear skepticism that the juror’s father’s janitorial position in a different court house had anything to do with the challenge.

The decision is one that the Commonwealth’s courts can and should be proud of, as it expresses the need for juries free of even an appearance of impropriety.  Otherwise stated, it is important that the process of jury selection not only be fair, but appear fair.  The court is to be commended for reinforcing this message.

Read the decision in Commonwealth v. Povez here

Common Sense and Elephants

insuranceThe Rhode Island Supreme Court recently approved the actions of a trial court judge who took the unusual step of speaking to jurors about insurance–an issue that is ordinarily mysteriously absent from the evidence in most personal injury trials.

The trial judge in Oden v. Schwartz instructed the jury that they were not to consider such issues as medical or other insurance or attorney’s fees.  She further told them that they were not to consider what might happen to the physician’s malpractice premiums as a result of a verdict against him (which is probably nothing).  Predictably, as whenever there is any mention of insurance at trial, the defendant doctor’s lawyer objected vociferously, and when there was an adverse verdict, appealed.

In striking a blow for common sense, the Rhode Island Supreme Court held that it was entirely proper for the trial judge to address issues that are often in the minds of jurors, and to tell them–accurately–that these are not proper considerations in their deliberations.  The Court noted that the trial judge “simply addressed the reality that jurors often wonder about liability coverage, especially in instances where there is typically an insured risk, such as medical malpractice.”

The Rhode Island court is entirely correct.  We all know from our own experience on juries and from hearing comments by jurors after trial that they are well aware that doctors carry malpractice coverage.  They also assume that their verdict might impact the doctor’s premiums–even though this is not usually the case.  They usually suspect that large medical bills are or will be paid by health insurance, and expect that the plaintiff will have to pay his attorney a contingent fee.  Yet none of these factors is a proper consideration in the jury’s deliberations.

These issues are the elephant in the corner of the courtroom.  They are a natural part of a juror’s thought process–yet the rules of evidence forbid any mention of these issues.   The approach chosen by the trial court and approved by the appellate court is sensible, because it confronts the elephant head on, and attempts to explain the absence of any mention of logically related issues by telling the jurors that they are not proper considerations.

If anything, it would make sense for trial judges to go even further: to explain to jurors that their verdict depends on whether a defendant is legally responsible, and not whether he is insured, or that most health care insurers can recover what they’ve paid from the plaintiff if the plaintiff gets a verdict that includes medical expenses, so the plaintiff will not receive a windfall.  The best way to prevent jurors from improperly taking these factors into account, or from making incorrect assumptions, is to be frank, to name the elephant in the corner and explain why it must be ignored.

Read the Rhode Island court’s opinion in Oden v. Schwartz here.

Jury Management in the 21st Century

jury-selectionThe New Hampshire Superior Court announced last week that it would soon implement a new computerized jury management selection that should benefit jurors, court personnel, and lawyers alike.

The new system, expected to be operational late this summer, will assign each prospective juror an on-line access code that will permit the juror to complete the demographic questionnaire, request to be excused or to reschedule jury service, and check on required reporting dates for jury service.  Jurors with no access to the internet will continue to complete the existing paper forms.

The jurors’ questionnaire responses will be compiled by court staff and made available in a pdf document to lawyers who have cases scheduled for trial in the session.  Under current practice, lawyers may either review the completed forms in the clerk’s office, or pay a fee to borrow a paper copy.   Unless the fee is paid, lawyers have no access to the forms during the most crucial time–the actual selection of the jury.

The new system should also ease the burden on court personnel, who now spend significant time collating and reproducing the juror questionnaires.  The system will also allow clerks and judges to review jurors’ requests to be excused and respond electronically.  An additional feature will permit clerks to schedule automated telephone calls to large groups of jurors when there is a schedule change or cancellation.

The technology behind the system is not particularly new or sophisticated by current standards, but because of financial constraints, most state courts have lagged behind private businesses in taking advantage of computerized systems.

When implemented, the New Hampshire system should be vastly superior to Massachusetts, where lawyers usually receive no information about prospective jurors until the jurors are filing into the courtroom.  Court personnel struggle to collect, collate, and copy reams of paper every day, while jurors are often frustrated by the inability to get a response on the automated call-in telephone lines.

Read more about the new system here.

Beware “Expert” Jurors: Lessons from the Jury, Part II

Jury with expertJurors decide based on what they know–or more importantly, what they think they know.  It is unrealistic to expect a juror to discard a lifetime of learning or professional knowledge and instead rely only upon what someone says in the courtroom.  And that means that a juror who has pre-existing knowledge about one or more issues in a case is a very dangerous juror for someone.

In my last post, I talked about some of my observations about jurors deliberating after a mock trial exercise.  One of those jurors was a doctor–something that would probably never happen in a personal injury case in real life.  And, predictably, his “knowledge”–although not completely correct–was very persuasive to his fellow jurors.  It was an excellent reminder about the perils of leaving an “expert” on a jury.

The case involved a young boy who claimed to have suffered a closed head injury on a roller coaster ride  According to the testimony, while riding the coaster, the boy complained to his father that his neck had “popped,” and then slumped down in his seat.  He stumbled off the ride, nauseated, and soon passed out and was taken to the hospital.  Radiology studies showed a brain bleed and a neck fracture, along with some other signs of trauma.

The doctor on the panel told the rest of the jurors that causation–whether the roller coaster caused the boy’s brain injury–was a “slam dunk.”  There was no question in his mind; he only needed to decide whether the amusement park was negligent.  And the other jurors went along without question.

The problem is that the cause of the boy’s brain bleed was far from a slam dunk.  Deliberately created to give each side some strong points, the case had some facts that permitted the defense to argue that the boy had a congenital blood vessel anomaly or aneurysm, that suddenly burst even under forces that would be safe for most people.  There was even a suggestion that the bleed had occurred in a recent soccer game.

In that respect, the case mirrors real life, where cases that are slam dunks for one side or the other never reach trial.  If the plaintiff’s case is very weak, it is usually dismissed or never brought in the first place.  If the defense can’t come up with any way to rebut the plaintiff’s claims, the most likely result is a settlement.   If a jury is asked to decide a case, both sides usually have something to talk about.

In the mock trial, the doctor, who was a retired pediatrician,  knew just enough to sound like an expert, but not enough to recognize the subtleties in another medical discipline.  Yet his fellow jurors hung on his every word, not even questioning his statement or analyzing the evidence that favored the defendant.  While the position he took was probably correct, it was really not as clear as he made it sound.

An “expert” on the jury is dangerous for both sides, because that juror is likely to be a leader and his opinions to carry undue weight during deliberations.  A lawyer who allows an “expert” juror to  remain on a jury is gambling that the juror will favor his or her side of the case.  If the gamble pays off, the juror may well lead others to follow his opinions, resulting in an easier path to victory.  However, if the lawyer has misjudged the “expert” juror’s inclination or reaction to the evidence, the result could be disastrous.  For this reason, the prudent course is most often to avoid jurors with specialized relevant knowledge.

Inquiring Minds: Lessons from the Jury, Part I

Jury panelThe complaint lawyers most often hear from jurors is that there is too much repetition during trial.  Lawyers are often guilty of repeating the same point over and over, long after the jury has heard and understood it.  But what lawyers don’t usually realize is how much information the jurors don’t have–and what they do to fill in the gaps.  Making an effort to see the evidence through the fresh eyes of the jury can help trial lawyers present a case more effectively.

Last week, I had the honor of joining a group of lawyers from around the country in Reno, Nevada, to help young lawyers develop their skills in an area we all hope is not a dying art: trial practice.  Each year, I truly enjoy seeing the students improve through the week, but the highlight of the program is the opportunity to watch a jury deliberate.

On the last day, the students try a case to a jury of real Washoe County citizens, who fulfill their jury service requirement by spending the day at the National Judicial Center, helping young lawyers gain experience that is increasingly difficult to find as the number of trials nationwide continues to decline.  Once the mini-trial (jury selection, opening statements, six witnesses and closing arguments in about six hours) is completed, two different juries retire to their respective jury rooms, and the lawyers can watch their deliberations on closed-circuit TV.

The experience is at once reassuring, educational and horrifying.  Reassuring, because even though they know they are not discussing a real case, the jurors take it very seriously–as I believe most juries do.  Educational, because it offers lawyers an opportunity they never get–to see the group dynamics in action.  And horrifying, because it shows how many issues lawyers miss, how many questions jurors have that go unanswered by the evidence.

Predictably, the lack of answers does not prevent the jurors from talking about an issue, or even from speculating about the missing information, despite the judge’s instructions not to do so.  With Google and Wikipedia just a few keystrokes away, most of us are used to finding answers to obscure questions–and getting the information instantly.

The case that our students try involves a young boy who claims that he suffered a brain injury as a result of excessive forces on an amusement park roller coaster.  Although modeled on a case that was actually tried in Texas many years ago, the facts have been modified and simplified for teaching purposes.

Every year as I watch the deliberations, I am astounded by the questions the jurors discuss that were simply not part of the evidence at trial: why only the boy’s  father and not his mother testified (we only have so much time); whether the park or the government sets the height requirement for the ride  (the park, a fact the students knew but failed to point out); what type of disclaimers or release language appeared on the back of the admission ticket (we don’t have that information, and neither side even mentioned the ticket).

There are several important lessons here.  One is that lawyers must try to put themselves in the jurors’ position, and provide any available information to give them a full picture of relevant events.  Sometimes lawyers omit a fact because they know it’s not important–but the jury may not know the fact doesn’t matter, and may wonder about it, or even violate the court’s instructions by trying to find the answer from another source.  Better to explain that a witness has no pertinent knowledge, or that his version of events is the same as another witness’s–even by having the witness say so briefly–than to have the jury wondering why a certain witness wasn’t called.

If a piece of information isn’t available, or is something the jurors are not permitted to hear, maybe we should just tell them, rather than ignore it completely and encourage either speculation or independent investigation.  For example, all lawyers know that whether a defendant has been sued before is irrelevant and inadmissible–the legal principle being that we are each judged by our conduct on the occasion in question, not on on whether we are habitually careless or negligent.  Yet time after time, I’ve heard jurors say that, since they didn’t hear that a defendant had been sued before, they assumed that he hadn’t, and that they didn’t want to punish a “first-timer.”  In fact, even if a defendant had been sued and found liable a dozen times, the jury wouldn’t ever hear about it.

And finally, we need to expand the current trend toward allowing jurors to ask questions because it provides a legal avenue for jurors to get information that they think they might need to make a decision.  In Massachusetts, the judge has the discretion to allow jurors to ask questions, and to establish a procedure to take and handle those questions.  Even if the answer to a juror’s question only shows that juror that the answer doesn’t matter, the jury’s deliberations have been facilitated and focused.