Voir Dire – Barbagallo Law

Introduction

“Whatever happened to good old-fashioned personal responsibility? We’ve now become a society of victims in search of a scapegoat to sue whenever anything goes wrong…”

This attitude is very common in America and very common in our juries. A national survey has confirmed that most Americans, 92 percent, believe that frivolous lawsuits are common. 2 This country was founded on the principle of a fair judicial system; an unbiased jury is needed in order to have a fair trial.

In order to prevent juror bias an effective voir dire system is needed. There are three methods for conducting the voir dire process. The first method is the Federal Method, in which the judge has complete control over the questioning of potential jurors and has ultimate discretion whether to allow attorneys to ask certain questions. In the second method the attorney controls the questioning and the judge monitors. And in the third method the judge conducts the initial questioning and then the attorneys conduct the rest of the questioning. 3

JUDGE’S DISCRETION IN EXAMINATION OF JURORS

Both Massachusetts and New Hampshire conduct the voir dire process by using the Federal Method. G.L.c. 234 § 28 is the statutory provision for Massachusetts which governs the juror examination process. 4 The statute gives discretionary power to the trial judge to determine whether a juror stands indifferent in the case and whether a juror should be questioned individually. 5 Courts have given the trial judge wide discretion whether to refine or improve on G.L.c. 234 § 28. 6 Courts have allowed the trial judge fair leeway in deciding how deep the probe should go, having in view the nature of the case as the judge perceives it. 7

There is no statutory provision, which governs the juror examination process in New Hampshire. The standard that is followed is that the juror must be as nearly impartial “as the lot of humanity will admit”. 8 The court has given the trial judge broad discretion for determination whether prospective jurors should sit; whether a prospective juror is impartial is a question of fact. 9 Such questions involve community attitudes, possible exposure to prejudicial material, possible preconceived attitudes towards a class of people and the credibility of a class of people.

Although the judge has discretion the statutory and customary law standards followed by both States seems to show that both States want to conduct a fair trial system. However, there is so much discretion, uniformity is rare and not all questions are asked that could reveal hidden biases.

ATTITUDES TOWARDS CIVIL LAWSUITS

The media coverage of civil verdicts has produced a negative attitude among Americans. Tort propagandist and high publicity coverage of high-profile cases has embedded an anti-plaintiff bias in the public. 10 A “blame-game” has developed, in which the jurors are inclined to blame the plaintiff; a survey showed that jurors were suspicious of plaintiffs and their lawyers. 11 The bias is worse in personal injury cases in which a connective tissue injury occurs, because it is not immediately an obvious injury. A national survey revealed views from people such as, “…it’s real easy to claim injury when you’re not really hurt and get large amounts from insurance companies.” 12

Because of these views, supplements and practice manuals with suggested questions to be asked during voir dire have been published in Massachusetts and New Hampshire. Massachusetts Practice Volume 43, focused on several questions to ask in different personal injury cases. 13 These questions focused on biases jurors may have towards a particular type of injury or defendant. Sample questions for Medical Malpractice included; Do you feel that doctors as a class are special and that they can do no wrong?, Do you realize and agree that doctors can make mistakes and errors in judgment?, or Would it embarrass you in any way to find a doctor careless or negligent?. 14 Sample questions for Auto Accident cases included; Are you opposed to someone who has been injured in an accident suing for injuries?, or Do you have any personal feelings that will make it difficult for you to award fair and adequate damages to the plaintiff for his/her injuries, if the evidence and law warrant it? 15

New Hampshire also has suggested jury questions. 16 It focuses on general and specific biases. The questions focus on whether any jury members are related to or know any parties or witnesses or counsel, whether a juror expects to gain or lose anything as a result of the verdict, whether a juror employs any of the attorneys present at the trial, whether a juror has ever dealt with any of the attorneys or witnesses or parties present, have any of the jurors or their close family members been litigants and the outcome of the case, have any jurors been involved in a case in which one of the attorneys present represented a party, is any juror under financial obligation or had contractual dealings with any of the counsel or witnesses or parties present, whether any juror has heard anything about the case, whether any juror directly or indirectly has formed an opinion about the case, whether any juror is involved with organizations which take public positions in matters relative to the case, does any juror have moral or personal or religious convictions about people who make claims for damages, whether any juror has any prejudice towards counsel or witnesses or parties due to the nature or controversy or any other reason, and whether there is any reason a juror cannot sit and hear the evidence and render a true and honest verdict in accordance with the law.

JUDGE’S DISCRETION IN EXAMINATION OF JURORS

CONCLUSION

Because the ultimate discretion lies with the trial judge and uniformity is rare and not all questions that could prevent hidden biases are asked. There is voluminous case-law; especially, in Massachusetts that shows that the court gives wide discretion to the judges. Most questions that could help eliminate bias are never asked. At a recent New Hampshire Bench and Bar legal seminar which raised the jury bias question, judges expressed their reluctance to ask questions which could help reveal underlying biases, because they feared the jurors would believe they are siding with one of the parties. I believe that a unified set of questions is needed for civil lawsuits, and I have composed the following:

Do you feel that people suing for personal injuries win too often?
Do you have any feelings about the maximum amount you would be willing to award somebody for an injury?
Do you feel that the spouse of a man/woman injured by another’s conduct should not be monetarily compensated for their loss, as defined by our law?
Do you feel that there should be a law that limits the amount of damages, which a jury can award in any negligence action either to compensate the victim or to compensate his/her loved ones for his/her injury?
Do you feel that it might be too easy for someone to sue and get big verdicts in our courts?
Do you feel that there are too many unjustified negligence lawsuits in our courts?
Do you feel that negligence lawsuits have an adverse impact on people or society or the economy in general?
Do you feel that a person who has had a similar injury in the past should not be compensated for an aggravation of that injury caused by a subsequent accident?
Do you feel that a person who has had a similar injury in the past should have a limit on a recovery for an aggravation of that injury caused by a subsequent accident?
Do you feel that a witness with a foreign accent is less believable?
Do you feel access to our courts should be limited to persons born in the United States?
Do you feel that it is unlikely that a person could be permanently injured in a car crash where the property damage is minor?
Do you feel that it is unlikely that a person could be permanently injured in a car crash where the impact is low?

The common practice now is leading to juries filled with biased jurors, which is affecting a litigant’s right to a fair and impartial trial. These questions will help identify the hidden biases and prejudices which jury members may harbor towards plaintiffs in civil personal injury cases.