A successful Second Annual Bench Bar Symposium

Issue November 2007 By David W. White

Encouraging signs were everywhere at the MBA’s Second Annual Bench-Bar Symposium. A willingness to allow expanded voir dire in civil and criminal cases, receptiveness to jury instructions on liens and insurance, and agreement on changes in the ethical rules regarding post-trial contact with jurors was shared, at least to some extent, by all four of the judges on the panel.

The change in attitudes about voir dire can largely be credited to the trial lawyers around the state and the MBA. For so many years, the only information provided about the jurors was the handful of answers on the old jury questionnaire. While most states have allowed extensive individual voir dire conducted by the attorneys, Massachusetts judges were reluctant to conduct even the most limited individual voir dire themselves. But lawyers have kept up a steady drumbeat of requests for expanded voir dire, and made the subject one which was addressed at every possible forum.

The result: A slow but clear shift in the judicial culture. The four panelist judges, Judge Margaret Hinkle, Judge Kenneth Fishman, Judge Peter Agnes, and Judge Carol Ball, now make some form of judge-conducted voir dire part of their jury selection, and many were open to some participation, at sidebar, by the attorneys. Everybody acknowledged the benefits, which included the better ferreting-out of clearly biased jurors, and a reduction in the jurors who are likely to tune out the trial and stop paying attention.

These changes should encourage us to continue to ask for additional changes, and we have. For those who try personal injury trials, first party insurance issues have long been vexing. Most jurors know that there is often health insurance, PIP, workers’ compensation or disability insurance to cover some of a person’s losses. But almost none of those jurors know that the amounts will be deducted from the judgment by the judge, or that there will be some other sort of payback requirement. The result is unfair deductions made by jurors who simply do not know the law. That is why essential changes in instructions on insurance should be adopted in all cases. There is certainly no prohibition on such instructions, and the result will increase the fairness of trials.

It is also time for Rule 3.5(d) of the Rules of Professional Conduct to be re-written. Years ago, after the Commonwealth v. Solis case, the Supreme Judicial Court amended the rule to prohibit post-trial contact by trial counsel with jurors. The amendment was enacted despite the lack of any demonstrated problems with inappropriate juror contact. Thus, Massachusetts joined a small minority of states which restrict or prohibit such contact. The prohibition has several negative effects, including preventing criminal and civil trial lawyers from learning what was effective, or not, at trial. If amended, a revised rule would not lead to an explosion of new trial motions. The MBA’s Judicial Administration Section Council is helping to lead the campaign for reform on this issue, and also on so many other cutting-edge ideas.

Another interesting issue that came from the Bench-Bar Symposium: Lawyers infrequently ask for anything out of the ordinary at trial. Voir dire would probably expand faster if more lawyers asked for it, but it is not. Lawyers also rarely ask for other innovative jury techniques. The message here is to simply ask. The judges are willing to try new techniques at trial; they are just waiting for somebody to ask them. Looking for ideas? The MBA has an innovative jury technique educational seminar every year which will explain dozens of new ideas.

The MBA is fortunate to have excellent working relations with the courts at every level. As a result, the MBA has been asked by Supreme Judicial Court Chief Justice Margaret H. Marshall to co-sponsor the Court Management Advisory Board’s meetings, which will be taking place around the state in the next several months. The MBA is also co-sponsoring, with the District Court and the county bar associations, the bench-bar conferences for the District Court Department. Chief Justice Linda Connolly will be visiting each of the seven District Court districts for these forums over the next several months.

Building its longstanding relationship with the Massachusetts courts, the MBA looks forward to continuing and enhancing its close work with our colleagues on the bench.

What else should we be suggesting to the courts? Your voice is the one we want to hear so we can share your ideas in our meetings with court officials and in our work on court committees. Please send me your suggestions.

Take a second look
If you are buying your professional liability policy from the MBA Insurance Agency, you have the best possible insurance a Massachusetts lawyer can get. Putting policies side-by-side, the MBA-sponsored policy has the best coverage, time and time again. Call for more information.

Thanks go, once again, to the fine MBA Insurance Committee, chaired by Richard Eurich from Morrison Mahoney in Boston, and Terry Welsh, president of the MBA Insurance Agency.

Another thank you
The MBA, for the first time, has sold out the Annual Gala Dinner. This was the result of the excellent work of Douglas K. Sheff, of Sheff Law Offices in Boston, and the hard-working Dinner Committee he assembled. Thank you, Doug.