Attorney-conducted voir dire begins in Massachusetts

Issue March 2015 March 2015 By Eric P. Finamore

An enactment by the Legislature during the past calendar year reflects several profound changes underway in civil trial practice before the Superior Court. Chapter 254 of the Acts of 2014 authorizes attorney-conducted voir dire examination of prospective jurors during the empanelment process, as well the suggestion to the jury of a specific monetary amount for damages at trial. The brevity of the statutory language belies the tireless efforts of the advocates, including the past and present leadership of the Massachusetts Bar Association, who brought about the changes. It also barely hints at the breadth of the change in practice, or at the adaptive process which will be required of most Massachusetts attorneys who, unless they have practiced in other jurisdictions as well, will be unprepared for implementation of the statute.

The Massachusetts court system has long been criticized for its restrictive approach to jury voir dire, which largely limited assessments of prospective jurors' impartiality to the vital statistics disclosed on the mandatory juror questionnaire and in the responses to the statutory questions asked by the trial judge. Attorney-conducted voir dire has not been part of the civil trial court culture, and for most attorneys, in most cases, voir dire has not been a meaningful, substantial part of trial preparation.

In this respect, trial practice in Massachusetts is undergoing a significant change. Effective Feb. 2, 2015, M.G.L. c. 234, Sec 28(1) provides:

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.

That the court "shall" permit examination seems to indicate that the request must be allowed as a matter of right, but the sentence ends with the qualification that the questioning shall be permitted "at the discretion of the court." The effect of these seemingly-contradictory provisions remains to be seen. However, the effect of the statute is clear: counsel in Superior Court cases must be prepared for the advent of conducting (and opposing) voir dire questioning of prospective jurors in a civil case.

The Supreme Judicial Court Committee on Juror voir dire is expected to promulgate permanent procedures governing the juryvoir dire permitted by this statute. In the meantime, Superior Court Standing Order 1-15, adopted on Dec. 5, 2014, will be the governing procedure and all practitioners will have to be intimately familiar with its provisions and its implementation. This article is not intended to substitute for a thorough knowledge of the provision, much less for practical training, but seeks only to mention several pertinent characteristics of concern to the practitioner.

Motion and opposition. First, Standing Order 1-15(C)(1) provides that any attorney (or pro se party) who seeks to examine prospective jurors in a civil case must serve and file a motion requesting leave to do so under the procedure of Superior Court Rule 9A. The motion must be filed no later than the earlier of the final trial conference or fourteen days prior to the date scheduled for trial. Therefore, active preparation for the questioning of prospective jurors must begin at least several months before trial. This represents a substantial change in trial preparation. In previous practice, when requests for voir dire could often be filed on the day of trial, neither counsel nor the court received advance notice of such requests, and questions could be formulated at the last minute. Under the new procedure, opposing counsel will have had an opportunity to oppose the requests, and the court will have had opportunity to rule on the motion, all before the beginning of trial.

Substance of the motion. The standing order requires that the motion identify "generally" the topics of the questions the moving party proposes to ask the prospective jurors. The motion must also include proposed language for the brief explanation of the pertinent principles of law which is required to be given by the court prior to the questioning under the provisions of Standing Order 1-15(C)(5)(b). Taken together, these provisions require counsel to submit the topics of proposed questions, along with an explanation of the legal elements of the claim or defense which might justify those topics. The topics identified shall be interpreted to include reasonable follow-up questions. Standing Order 1-15(C)(2).

However, the standing order also provides that the trial judge may require counsel to submit the specific language of the proposed questions for pre-approval. The standing order does not specify whether follow-up questions, allowed for identified topics, are also allowed where the specific language of the questions has been submitted for approval. It seems logical to suppose that the reasonable follow-up should be allowed in virtually all instances. However, the same concern which caused the court to require pre-approval of specific questions could cause the court to restrict the questioning to only the approved language.

Court action on the motion. After the parties' submissions, the standing order requires the trial judge to "approve" or "disapprove" the topics of questions or the specific language of the proposed questions. Standing Order 1-15(C)(3). The order also provides detailed guidance on the types of questions which should be generally approved, and those which should be generally disapproved. Standing Order 1-15(C)(4)(a), (b).

Questions that should generally be approved are described in paragraph (C)(4)(a), and include those questions inquiring about: (1) the prospective juror's background and experience pertinent to the issues expected to arise in the case and whether and how such background or experiences might influence the juror in the case, (2) preconceptions or biases relating to the identity of the parties or the nature of the claims or issues and (3) the prospective jurors' willingness and ability to accept and apply pertinent legal principles as instructed.

The standing order does not say that the three subcategories of paragraph (C)(4)(a) constitute an exhaustive list of questions or topics likely to be approved. However, these subjects seem to encompass the broad types of concerns that counsel will have in the process of seating an impartial jury and they are a fair summary of the types of concerns which have heretofore been raised during the empanelment process in any civil case.

The standing order also enumerates, in a somewhat longer list, questions which are likely to be disapproved. They include questions:

  • That duplicate the questions on the statutory confidential juror questionnaire.
  • Regarding the prospective juror's political views, voting patterns, party preferences, religious beliefs or affiliation, reading or viewing habits, charitable giving, opinions on matters of public policy, hobbies or recreational activities or regarding insurance.
  • Regarding the deliberation in or outcome of any trial in which the prospective juror has previously served as a juror.
  • Purporting to instruct jurors on the law.
  • That make arguments on any issue of fact or law; that tend to indoctrinate or persuade; that encourage the juror to identify with a party, victim, witness, attorney or other person or entity, or to send a message; or that encourage the juror to prejudge any issue in the case, to make a commitment to support a particular result, or to do anything other than remain impartial and follow the court's instructions.
  • That require a juror to guess or speculate about facts or law.
  • That would tend to embarrass or offend jurors or unduly invade jurors' privacy Standing Order 1-15(C)(4)(b).

These subparagraphs of the standing order offer guidance to the practitioner about the types of questions or topics to avoid listing in the motion. Particularly in subparagraphs (4) and (5), the order dispels any impression that the voir dire process is an opportunity to "pre-try" a case to the venire, or to create impressions or sympathies which will help the client during the course of the trial. While skillful questioning may inevitably lead to impressions or beliefs on the part of the prospective juror, the standing order indicates that the court will disapprove topics or questions obviously designed to achieve such a result.

Similarly, according to subparagraphs (2), the court should disapprove questions about a juror's religious or political views or affiliations and even opinions regarding matters of public policy. It might be supposed that some of those views would naturally affect a juror's ability to render a fair and impartial verdict, and may not be clearly distinguishable from the "experiences" or "preconceptions" which are explicitly approved under paragraph (C)(4)(a). Is a potential juror's belief that there are too many high damage awards in civil cases a "preconception … relating to the nature of the claim" about which questioning is permissible? Or is it an opinion on a matter of public policy, on which no questions should be asked? Counsel will have to become adept at walking the line between the approved and disapproved categories described by the standing order.

Attorney voir dire questioning. Following its ruling on the motion, the court is directed by the standing order to conduct its own explanation of the empanelment process and of the case and to conduct questioning of potential jurors, which by the terms Section (C)(5) appear to encompass the statements and questions with which practitioners are already familiar. As a result of that process, the court will assemble a panel which it finds to be indifferent and able to serve. Only after the trial judge has found an individual juror indifferent and able to serve do attorneys have the opportunity to question that person, either individually or as part of the venire panel, and only to the extent that questioning has been authorized by the court's action on the parties' motions.

The standing order provides for both individual and panel questioning. First, the judge may require that questioning be conducted of each prospective juror individually, outside the presence or hearing of other jurors. Standing Order 1-15(C)(6)(a). On the basis of the responses to their questions, the parties may assert challenges for cause at that time. If the juror is not excused for cause the judge may require the exercise of any peremptory challenge at that time, or the judge may seat the juror subject to the parties' later exercise of peremptory challenges.

Next, upon request of a party, the trial judge may permit counsel to question jurors as a group in a "panel" voir dire procedure. Standing Order 1-15(C)(6)(b). The panel must consist of at least the number of jurors that will be seated for trial. Jurors to whom questions are addressed in this form may be identified on the record by juror number only. After completion of panel questioning the parties may assert challenges for cause and the court may allow counsel opposing the challenge the opportunity to conduct further questioning of the juror.

These provisions make it clear that, despite the guidance provided by the standing order and the prescription of the statutory enactment, much about attorney-conducted voir dire will be left to the discretion of the trial judge. From the form and substance of the questions and topics, to the manner in which the questions are posed, to the timing of peremptory challenges, each trial judge will have discretion to structure the process as he or she sees fit, with due regard to the nature of the case, the parties and counsel in the courtroom and the judge's own preferences and comfort level.

The allowance of attorney-conducted voir dire is a welcome and long-sought improvement in Massachusetts civil procedure. It brings Massachusetts civil practice more closely into line with the majority of jurisdictions which permit it. It will assist the efforts of the courts and litigants to seat fair and impartial juries. Practitioners in this commonwealth must now learn its uses and limits, in order to employ it toward its commendable objectives. Superior Court Standing Order 1-15 is an illuminating first step, and a valuable tool, in that process. 

Eric P. Finamore practices civil litigation in Boston. He is the managing member of Weston Patrick, PA, and a member of the Massachusetts Bar Association's Civil Litigation Council.