Section Review

Current voir dire practices in bodily injury actions

Brian Mahoney of Canton has been a trial attorney for 21 years. His practice concentrates in bodily injury and medical negligence actions.
Interest in attorney-conducted voir dire is growing among members of the plaintiff's personal injury bar. This is fueled by concerns about potential juror bias resulting from widespread attacks on the existing tort system from influences such as President Bush's push for a federal cap on non-economic damages in medical negligence cases and years of negative media coverage resonating from the "spilled hot coffee case," known to the public simply as the McDonald's case.

Few of the public knows any of the facts of the case, other than it involved McDonald's, a woman, hot coffee to go, a bad burn and a "runaway judgment" for the plaintiff. Who among our potential jurors know of the more than 700 prior cases of serious coffee burns, or that McDonald's quality assurance manager's testimony that the coffee, at the temperature at which it was served, was not fit for human consumption because it would burn the mouth and throat, or of the large remittitur by the trial judge?

Are these community attitudes and misperceptions about extraneous issues creating bias in our prospective jurors? Does exposure to propaganda about a civil justice system run amok cause prospective jurors to enter the courtroom with preconceived opinions about the validity of a plaintiff's claim? Certainly, no matter what the cause of jurors' attitudes toward plaintiffs, jurors are now more cynical of attorneys as a group. How can a potential for bias be first detected, then eliminated, in order to seat fair-minded jurors?

Rule 47(a) and General Laws chapter 234, section 28 mandate limited judge-conducted voir dire of prospective jurors and permit, but do not require, attorney-conducted voir dire. In fact, Chapter 234, Section 28 specifically recognizes that attorney-conducted voir dire is appropriate if it appears that a juror may be biased due to "issues extraneous to the case, including but not limited to, community attitudes, possible exposure to potentially prejudicial material or possible preconceived opinions toward the credibility of certain classes of persons."

How often is attorney-conducted voir dire practiced in civil bodily injury cases in the commonwealth? My informal survey of five Superior Court trial judges and several members of the trial bar reveals that attorney-conducted voir dire is rarely conducted or even requested.

The five judges who generously donated their time to educate us, and who are referred to in the following discussion, were unanimous that jurors do experience some degree of cynicism or mistrust of trial lawyers. Although Judge Paul Chernoff believes there may be an initial mistrust of attorneys, he feels it recedes as the trial progresses.

Do we need attorney-conducted voir dire to avoid biased jurors? Boston trial attorney Leslie Lockard of Gaffin and Krattenmaker represents health care providers in medical negligence suits and employers in lawsuits brought by employees. From the defense standpoint, she sees no need for individual voir dire by attorneys, but always submits written questions, designed to ferret out bias, for the trial judge to ask of the pool. She asks the trial judge to ask basic fact questions designed to elicit information not only about what the prospective jurors' experiences may have been, but also those of their families or friends.

Of the five Superior Court trial judges who participated in my survey, three had never been asked and two had seldom been asked for individual voir dire questioning by attorneys in bodily injury cases. Many receive written questions from attorneys, but Judge Thomas Billings reports he seldom receives requests for questions in bodily injury cases other than medical negligence cases.

Lowell trial attorney Kathleen O'Donnell, president-elect of the Massachusetts Bar Association, routinely seeks attorney-conducted voir dire by motion, citing studies from the Association of Trial Lawyers of America's Trial magazine and attaching exhibits to her motion, including a copy of Judge Patrick Brady's May 21, 2002, Lawyers Weekly article entitled "Judges' Tort Stats Show Defendants Usually Win."

However, many in the defense bar argue that the good cases settle and only the "dogs," get tried. Lockard wins 90 percent of her medical negligence defenses. Meritorious medical malpractice cases, she states, "can and do settle."

How do the judges surveyed view attorney-conducted voir dire? The five trial judges' responses clearly indicate that if your case has a unique situation, that perhaps sets it aside from other matters, they will consider asking questions in addition to those required by statute, if they are particularly suited to the case at bar.

Judge Carol Ball might consider attorney-conducted voir dire if it could be conducted "in a time-efficient manner, to ensure a fair contest with unbiased jurors, but not for counsel to seek an advantage." Time and resources are cited as one potential reason not to allow attorney-conducted voir dire. Among other concerns regarding voir dire, Ball cites the shortage of jurors, especially in certain counties at certain times of the year (e.g., Suffolk just after Labor Day) when the demand for civil and criminal juries is huge. Judges also express concern that parties may not be heard because of a shortage of jurors, which may cost them thousands of dollars to come back, especially if both sides have expert witnesses. Although we as trial lawyers cannot always control when our cases will be tried, if peak times can be avoided, more leeway with voir dire might be granted.

In conducting voir dire, Billings seeks to learn how to identify bias, other barriers to objectivity in a particular case and any juror who does not believe in our civil justice system, while trying to remain consistent with the goals of efficient trials and respect for juror time and privacy. Billings tries to develop questions to flush out venire persons with those problems. However, it is not easy to flush out bias. Some believe only lawyers can elicit informative responses, that prospective jurors will just go with the flow to avoid being different or singled out when asked questions panelwide by the judge.

Braintree medical negligence attorney Frank Riccio, a former practicing dentist who lectures on oral surgery at Harvard, participated in a voir dire with individual questioning of each juror in federal court, conducted by trial judge Nancy Gertner, himself and two defense counsel. The procedure took about one hour, with about five minutes spent on each panel member. Individual voir dire was very helpful, according to Riccio, because a woman revealed that her husband was once sued in a frivolous case. She was excused, but Riccio and the others felt she wouldn't have been excused for bias had only the generic questions been asked of the entire panel. When the generic questions were asked, this woman did not disclose her husband's litigation woes. If individual voir dire had not been conducted, this potential juror's bias would never have been revealed.

What kinds of questions would likely be allowed? Would it be permissible and beneficial to ask, "Do you think awards in personal injury cases have been too high?" or "Do you believe these cases are often frivolous?" Would even asking those types of questions put bad thoughts into prospective jurors' minds?

I asked several trial judges about asking a potential jury pool the following question: "How do you feel about people who sue others for money damages?" None of the five judges would ask that question as posed.

Billings did, for a while, ask the following questions routinely in tort cases:

A. Do you have any objection, philosophical or otherwise, to a system in which jurors are asked to award money damages to a person who has been injured by another person's negligence?

B. Do you have any objection, philosophical or otherwise, to a system in which an injured person may not recover damages against another person unless she proves, more probably than not, that the other person was negligent and that her injuries were caused by the other person's negligence?

The response rate was so low that he has all but stopped.

Judge Janet Sanders opined that an effective question in all bodily injury cases is, "Have you ever made a claim (or yourself had a claim against you) seeking money damages for personal injuries?"

Chernoff asks prospective jurors if they or their families have had any experience with the particular type of injury allegedly suffered by the plaintiff.

Judge Peter Lauriat concurs with asking case specific questions, but none too broad as, "Have you ever been in a car accident?" Lauriat would like to see a pilot program on voir dire.

The more streamlined the questions, the more likely Sanders is to allow questions submitted to her by counsel, in order achieve the goal of seating an unbiased jury. Avoid repetition, she stresses. Billings wants to ask questions which elicit a "Yes" or "No" answer, which may then lead to an inquiry at sidebar in which more open-ended questions might be asked by him.

Semantics matter. Boston trial attorney Kenneth Kolpan, who represents victims of closed head injuries, illustrated for me the importance of the wording of questions.

"More than 10 years ago," Kolpan said, "I tried a motor vehicle bodily injury case in Fall River, where my minor plaintiff sued two tortfeasors, including her mother, who was driving the vehicle. The judge asked the jury pool whether anyone was biased or could not be fair (or words to that effect) where a minor was suing a parent. No hands went up. The judge then asked the same pool a question we proposed, 'Is there any one who feels it is wrong for a child to sue a parent?' Many hands went up and the judge questioned each prospective juror in chambers. Many of those questioned indicated bias against the minor plaintiff."

Whatever the questions asked, trial counsel must be prepared to ask follow-up questions. All trial judges who offered input, indicated immediate questioning at side bar would follow up any answer indicating a possible problem, with many of them indicating follow-up questioning by attorneys would be allowed at sidebar. Ball would allow attorneys follow-up questions at side bar noting that she would simply not require a panel member to answer a question she deemed improper.

Counsel should be careful with follow up questions, after all this person may become one of your jurors. If a judge does not permit one of your questions might that panel member now see you as attempting to pry into his personal affairs?

Trial judges, as well as trial lawyers, are new at voir dire, so it remains a learning experience for all of us. All of the judges surveyed find merit in questioning jurors about potential bias. We as trial lawyers need to educate ourselves about voir dire and ask for it where appropriate.

There are numerous resources available to help trial lawyers educate themselves about the importance of voir dire and local practice. Read what new judges read when taking the bench, and upon which many trial judges rely: Massachusetts Jury Trial Bench Book by Judge Peter Lauriat, published by the Flaschner Institute.

Attorney Stephen J. Lipman's article in the MBA Civil Litigation Section Review, Spring 2002, "Voir Dire Enlightens Jurors About Unconscious Bias," is informative, as are the Massachusetts Academy of Trial Attorneys materials from two seminars: "Overcoming Jury Bias," April 2003, and "How to Conduct a Meaningful and Effective Voir Dire," January 2003 (where we learned individual voir dire by attorneys is an integral practice in Rhode Island).

In his article, "Individual Voir Dire," MATA Journal, Summer 2003, Judge Raymond Brassard discusses two important issues: First, it is his experience that jurors often disclose something of importance only in individual voir dire. Second, in his experience, attorneys do not take him up on his offer to ask questions of individual jurors.

Washington D.C. Superior Court Justice Gregory Mize's thorough analysis of his experience in criminal cases in "On Better Jury Selection: Spotting UFO Jurors Before They Enter the Jury," 36 Court Review 10 (1999), led him to believe that citizens who do not respond to poolwide questions should be individually questioned. In 90 percent of the criminal cases on which he sat while maintaining records, he estimated that just fewer than one in five of "silent prospective jurors," when individually questioned, revealed responses leading to one, and as many as four, being struck for cause.

What should you do if you believe your case warrants individual, attorney-conducted voir dire?

1. Review the questions that most, if not all, Massachusetts trial judges ask by reading the Massachusetts Jury Trial Bench Book, particularly the panel questions proposed by Lauriat.

2. Develop a case-specific list of questions you want to ask.

3. Ask for individual voir dire and, alternatively, for the trial judge to ask your questions.

4. Use focus groups to identify specific bias issues germane to your case for follow up in voir dire. It is not the quantity, but the quality of proposed questions. Even if it is just one question, one is better than none, as it is knowledge of a potential for bias we seek to disqualify a biased juror who would prevent us from having "a fair race."

5. Ask the judge if you can ask questions of a potential juror who indicated some issue exists in response to panelwide questions. Judges who allow this feel comfortable that they can easily exclude any question they deem improper. Don't overreach and get "shot down" by the judge in front of a panel member at side bar.

As a trial lawyer for 21 years, with extensive civil litigation experience, it appears to me that voir dire is absolutely necessary for personal injury litigants to obtain a fair jury trial. Not only does the public have preconceived notions about personal injuries claims, those notions are often based upon inaccurate or incomplete information. My own clients believe all too often that it is easy to obtain adequate, if not excessive compensation, when the opposite is and has been true in the commonwealth for as long as I have been practicing.

It is important for trial counsel to think about, learn about and ask for voir dire. With the public's declining opinions of lawyers in general and negative attitudes toward personal injury claimants, it is essential for plaintiffs' attorneys to seek more voir dire from trial judges. It is the only way to get a fair contest, and if we do not ask, we will not get it.

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