Massachusetts will soon join the majority of other states in permitting personal injury attorneys (and pro se parties) to conduct voir dire during the jury empanelment process. Superior Court Standing Order 1-15 allows attorneys to directly question the jury venire in civil and criminal cases. This new empanelment procedure comes into effect as attorneys will also be allowed to argue monetary damages to a jury on behalf of a plaintiff.
Superior Court Standing Order 1-15 becomes effective on February 2, 2015. This is an interim Order which will remain in effect until the Supreme Judicial Court promulgates other empanelment rules. Under the new Standing Order, parties must file a motion requesting that voir dire be conducted by counsel, thereby invoking this novel right. Existing Superior Court Rule 9A procedures will continue to govern the service and filing of such motions. Motions will need to enumerate general topics for inquiry and, though not specifically required, identify specific questions and follow-up questions that judges will have the discretion to entertain. Presumptively permissible questions will concern the following: juror backgrounds and how such backgrounds may influence thinking; existing bias pertinent to the parties and/or issues being tried; and juror willingness to apply the law as charged by the judge. Impermissible questions include irrelevant political and religious views, opinion of public policies, and questions that would embarrass, offend or invade the privacy of a juror. Parties opposing attorney conducted voir dire on certain topics may lodge objections to the questioning, especially if they are designed to indoctrinate or sway juror impartiality.
Many members of the trial bar have criticized judge-conducted voir dire because jurors tend to be intimidated when questioned by a judge as opposed to an attorney who may elicit a more honest and unguarded response. Judges may also tend to ask more linear "yes" and "no" questions, with responses limited to a show of hands and little to no follow-up inquires. Standing Order 1-15 is of particular relevance to personal injury attorneys in Massachusetts. Jurors are bombarded by advertisements and articles regarding personal injury litigation and Tort reform. The spurious notion of rising insurance premiums resulting from insurance pay-outs on frivolous cases is not supported by statistical analysis, but it has a pervasive social effect nevertheless. Many in the jury pool have predispositions regarding personal injury litigation and look upon such claims and claimants with a jaundiced eye. Now that counsel have the right to conduct voir dire, personal injury attorneys will better be able to vet the jury pool and identify prospective jurors having undue bias against personal injury and tort claims. Of course, it will also give defense counsel the same ability to identify biased individuals who are proponents of such litigation. The trial bar looks forward to using the new voir dire process to help ensure that an open-minded jury will hear the evidence presented at trial.
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