In August of 2014, Governor Patrick signed a bill into law permitting attorney-conducted voir dire in Massachusetts. The bill provides that “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.” Moreover, the “court may impose reasonable limitations upon the questions allowed during such examination, including, but not limited to requiring pre-approval of the questions.”
It remains to be seen how much leverage judges will give attorneys conducting voir dire, and whether the system will be meaningfully different from the present status of voir dire, whereby attorneys can request that the court ask additional questions of the jury venire beyond the standard jury impanelment questions. Notably, many judges from the Massachusetts Trial Court system were vocally opposed to the new bill. These judges argued that the costs associated with attorney-conducted voir dire would be excessive, as it will presumably increase the time required to seat a jury and will require a larger jury pool for empanelment as more jurors will be eliminated through the additional questions posed by the attorneys conducting the voir dire. Given these considerations, this will have likely have bearing on the “reasonable limitations” judges place on the voir dire process.
In response to the bill, the Massachusetts Supreme Judicial formed a committee to examine the voir dire process and to make recommendations for how best to implement the new legislation. Undoubtably, judges will differ in their definition of “reasonable limits,” which in turn could create appellate issues. Presumably, the recommendations from this committee will affect the manner in which judges determine appropriate limitations on the voir dire process, although it is unclear whether any new court rules will be drafted to provide formal guidelines for judges to follow as they oversee the voir dire process, or whether the recommendations will be merely generic instructions.
The legislation also provides that in “civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.” This aspect of the bill is a significant change to how attorneys approach their presentation of damages. Prior to the new legislation, attorneys at trial were not permitted to request a particular sum for recovery and instead left it to jurors to determine an appropriate damages award. It is unclear how effectively this aspect of the new law will be utilized by lawyers at trial. In certain cases, an attorney’s request for an excessive damages amount may be off-putting to a jury and may make a jury question whether the case is merely a meritless “money grab.” Plaintiff’s counsel may also struggle with determining whether they are requesting enough in damages, as this may be perceived by the jury as an ultimate cap amount, and plaintiffs may fear the risk of shortchanging their potential recovery.
Proponents of this legislation tout the bill as a seismic shift in jury selection and trials, but the actual implementation of these two provisions may be much more limited. Thus, although new and different in theory, the new legislation may not be particularly novel in practice. Going forward, it is important for trial counsel to be aware of the new changes and prepare for trial accordingly, but not to focus on the changes too excessively at the risk of losing sight of the core issues at trial.
In August of 2014, Governor Patrick signed a bill into law permitting attorney-conducted voir dire in Massachusetts. The bill provides that “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.” Moreover, the “court may impose reasonable limitations upon the questions allowed during such examination, including, but not limited to requiring pre-approval of the questions.”
It remains to be seen how much leverage judges will give attorneys conducting voir dire, and whether the system will be meaningfully different from the present status of voir dire, whereby attorneys can request that the court ask additional questions of the jury venire beyond the standard jury impanelment questions. Notably, many judges from the Massachusetts Trial Court system were vocally opposed to the new bill. These judges argued that the costs associated with attorney-conducted voir dire would be excessive, as it will presumably increase the time required to seat a jury and will require a larger jury pool for empanelment as more jurors will be eliminated through the additional questions posed by the attorneys conducting the voir dire. Given these considerations, this will have likely have bearing on the “reasonable limitations” judges place on the voir dire process.
In response to the bill, the Massachusetts Supreme Judicial formed a committee to examine the voir dire process and to make recommendations for how best to implement the new legislation. Undoubtably, judges will differ in their definition of “reasonable limits,” which in turn could create appellate issues. Presumably, the recommendations from this committee will affect the manner in which judges determine appropriate limitations on the voir dire process, although it is unclear whether any new court rules will be drafted to provide formal guidelines for judges to follow as they oversee the voir dire process, or whether the recommendations will be merely generic instructions.
The legislation also provides that in “civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.” This aspect of the bill is a significant change to how attorneys approach their presentation of damages. Prior to the new legislation, attorneys at trial were not permitted to request a particular sum for recovery and instead left it to jurors to determine an appropriate damages award. It is unclear how effectively this aspect of the new law will be utilized by lawyers at trial. In certain cases, an attorney’s request for an excessive damages amount may be off-putting to a jury and may make a jury question whether the case is merely a meritless “money grab.” Plaintiff’s counsel may also struggle with determining whether they are requesting enough in damages, as this may be perceived by the jury as an ultimate cap amount, and plaintiffs may fear the risk of shortchanging their potential recovery.
Proponents of this legislation tout the bill as a seismic shift in jury selection and trials, but the actual implementation of these two provisions may be much more limited. Thus, although new and different in theory, the new legislation may not be particularly novel in practice. Going forward, it is important for trial counsel to be aware of the new changes and prepare for trial accordingly, but not to focus on the changes too excessively at the risk of losing sight of the core issues at trial.
