Section Review

As long as I can remember, plaintiffs' trial lawyers have believed that Massachusetts plaintiffs get a raw deal because their lawyers are not able to question prospective jurors to determine bias or prejudice. Massachusetts has long relied on a series of statutory questions, asked by the trial judge, that call for yes or no answers from the prospective jurors. On occasion, where special circumstances merited additional questions, counsel typically submitted proposed questions, which would be adopted by the court and modified to put the questions in yes or no format.
What is not explored in the questions (and that could not be mentioned in the course of the trial) were the external factors in our ordinary lives and in the jurors' experience that might bear upon their consideration of the questions in the case or color their consideration of the evidence they would hear.
Plaintiffs lawyers would like to inquire about prospective jurors' views on the so-called "tort explosion," the "insurance crisis," treatment of large corporate defendants, and feelings about lawyers in general, and plaintiffs' lawyers in particular, to determine whether and how those feelings might affect the jurors' handling of their responsibilities in the trial.
Recently, I was called to trial as plaintiff's counsel in a slip-and-fall case against a major retailer.
The case was scheduled to begin before Judge Zobel (now retired) in the Middlesex Superior Court on Sept. 11, 2001. Needless to say, events of that morning sent us all home early, but as directed by the court, we returned the following morning to begin our trial. There was a great deal of concern about the effect on jurors of the previous day's events and whether jurors would be able to devote their full attention to the evidence and give the case the consideration it deserved, notwithstanding the much more serious events of the previous day.
Judge Zobel allowed us to bifurcate the trial of the case to try only liability, and gave us an opportunity to examine the jurors on voir dire, provided both sides agreed. The court provided an order that both counsel accepted fully.
The logistics of the order were as follows:
After the prospective jurors had been assembled in the courtroom, the judge asked the usual questions, including a question that asked if any juror felt that he or she could not in good conscience fulfill the obligations of a juror in light of the events of the previous day.
In typical fashion, various jurors raised their hands in answer to one or another of the questions and the clerk recorded the juror's number for each raised hand.
Once all of the questions had been responded to, the court seated 12 jurors in numerical order who had not answered yes to any of the statutory questions of the court. Plaintiff's counsel was then given one hour to address the jurors in the box about any issue that he wished, so long as he did not discuss the merits of the case itself. When plaintiff's counsel was through, defendant's counsel had the same opportunity.
Interestingly enough, the questions of both plaintiff's and defendant's counsel were very similar. Virtually all of the questions asked for a narrative, rather than a yes or no answer, and were directed to the panel as a whole. There seemed to be little reluctance in this setting for jurors to speak out as to their feelings about the questions asked or for other jurors to comment on the initial question or the other jurors' responses.
For example, this was a case in which a young woman was injured while in the company of her mother, who would be her principal corroborating witness. The defendant corporation would testify through an assistant store manager who had worked for the store for a significant period of time and apparently was going to continue to work for the defendant for the rest of his working life.
With these facts in mind, plaintiff's counsel asked the panel how they felt about a mother testifying on behalf of her child and whether they felt that the testimony of such a parent might be questionable as being biased in favor of the child.
Some jurors felt that an oath was an oath. Others expressed concerns that there might be some prejudice and that a mother might indeed look upon things in such a way as to give favorable testimony to her daughter, even if unknowingly.
Plaintiff's counsel then followed by explaining that the defendant corporation would be providing testimony of an employee who owed his livelihood to the defendant and asked if the jurors felt that the testimony of an employee could be relied upon as being free of bias, even though the defendant was responsible for his livelihood. This engendered a wide-ranging discussion that also included the considerations of the parent/child bias as well.
In this manner, the jurors were sensitized to a concern that was reasonably based on the facts of the relationship between the parties, but that otherwise would not be mentioned in any manner in the course of the trial. Without this discussion, no feelings as to how the jury would treat this testimony would have been otherwise expressed.
In similar fashion, both counsel put topics before jurors, allowing specific jurors to express their views and generally getting these issues out in the open for discussion and analysis by the entire panel.
Prospective jurors were also questioned about their views on tort claims and insurance costs and asked how their views might affect their judgment. These questions were not designed to identify jurors who might be unfavorable to one side or the other so they can be stricken, but to increase the jurors' awareness of their own bias and how it could impair their duties as jurors. The goal of trying to level the playing field is accomplished by simply asking the questions.
Neither plaintiff nor defendant counsel took the full time allotted; plaintiff's counsel spent about 40 minutes and defendant's counsel, about 20 minutes. The entire jury selection process was, if anything, briefer than it would have been had we approached the side bar repeatedly for jurors to explain why they had raised their hands to the judge's pro forma questions.
Although this was the first time that either counsel had been given this opportunity, and apparently the first time that the court had actually picked a jury this way, it seemed to work for us and this case.
This is a model that should be tried by a number of judges and counsel to see if it is a better way to pick juries in Massachusetts while, at the same time, preserving efficiency in the processing of civil cases. Both counsel felt this was a good way of addressing these needs and would welcome the opportunity to participate in a similar process in any future case.
I do not know whether this process affected the outcome of the case, but I know I felt more comfortable trying the case, knowing that the jurors had been educated about how their unconscious biases can unfairly affect their decisions and the outcome of the case. I felt that, at last, my client had a level playing field.