March 26, 2015 Top Story

Lawyers—Not Judges—May Select Their Own Juries for Trial

Standing order allows attorneys or self-represented parties to conduct voir dire

Kelso L. Anderson

Attorneys and self-represented parties may select their own jurors for trial and even reject jurors deemed to be impartial by a trial judge, according to an interim standing order issued by a state trial court. Massachusetts Superior Court Standing Order 1-15.Section leaders are mixed as to whether it will enhance the empanelment of impartial jurors but agree that it is likely to prolong trials.

Interim Procedure

By its terms, Massachusetts Superior Court Standing Order 1-15:Participation in Juror Voir Dire by Attorneys and Self-Represented Parties, is an interim procedure adopted by Massachusetts trial courts. The order implements Chapter 254, Section 2 of the Acts of 2014, entitled “An Act Relative to Certain Judicial Procedures in the Superior Court,” which became effective along with the order on February 2, 2015, and will stay in effect until it is “superseded or modified.”

Among other provisions, the order permits “oral examination of the prospective jurors” by a party’s attorney or any self-represented litigant. However, the order also prescribes that trial judges retain discretion to employ “procedures for the examination of prospective jurors by attorneys and self-represented parties that may differ from those set forth herein.” Further, the order sets forth the procedure by which attorneys or self-represented parties may examine prospective jurors in civil and criminal cases.

Generally, that procedure requires attorneys and self-representedparties to file a motion with the trial court to submit questions to prospective jurors. The trial judge must either approve or disapprove the questions submitted, but the order states the type of questions the trial judge “should” and “should not” approve.

For example, questions that seek factual information about a juror’s background and experience, questions regarding juror biases about the identity of litigants or issues involved in a case, and questions about the prospective juror’s willingness and ability to apply legal principles after being instructed about the same by the judge “should” be approved. On the other hand, questions regarding a prospective juror’s political views, voting patterns, religious beliefs, and questions that require a juror to speculate about the facts or laws in the case, among other questions, “should not” be approved.

The order also permits attorneys and self-represented parties to conduct “panel voir dire,” a procedure in which they may question jurors as a group after the jurors have been determined by the trial judge to be impartial. At the completion of panel voir dire, an attorney may strike a juror for cause despite the trial judge’s finding that the juror was impartial.

Mixed Views on Attorney Voir Dire

“I have never seen an order like this,” says Paul M. Sandler, Baltimore, MD, founder and cochair of the ABA Section of Litigation’s Institute for Trial Training (LITT) and author of several books on trial practice and advocacy. “Many courts have rules that embody these principles,” Sandler notes. According to the ABA’s American Jury Project, the goal of voir dire, which is usually conducted by the trial judge, is to achieve a fair and impartial jury. Although the order preserves the traditional management role of judges in voir dire proceedings, whether the order will gain traction as a procedure to complement typical judge-conducted voir dire remains to be seen.

“Lawyers by their very nature can bog down a trial. Do you think a trial attorney wants an impartial jury?” says Sandler. Because attorneys would be able to cross-examine prospective jurors and select jurors they view as more favorable to their position, Sandler believes that most trial lawyers would welcome the order in their jurisdiction.

On the other hand, the order’s limitations on the type of questions that attorneys should not ask must be tailored based on the issues involved in a case, explains Jessica K. Hew, Orlando, FL, cochair of the Section’s Pretrial Practice & Discovery Committee. For instance, “the general disapproval of questions regarding religious beliefs will be detrimental in disputes as to the ownership of religious property,” Hew says. That shortcoming aside, Hew thinks that the order—and attorney-conducted voir dire, generally—should lead to a “more fair and impartial jury.”

Redundant, but May Have Some Advantages

While a balanced jury might be a reasonable outcome of attorney-conducted voir dire, at least one Section leader suggests that the order is a redundancy. “Trial judges, especially experienced trial judges, are generally very attuned to a potential juror’s bias. So attorney-conducted (or self-represented-party-conducted) voir dire may have only marginal effect on rooting out bias,” explains John Kenneth Felter, Boston, MA, cochair of the Section’s Trial Evidence Committee.

Despite his skepticism, Felter does believe that attorney-conducted (or self-represented-party-conducted) voir dire has its advantages. It may arm the attorney or party with “more ammunition to challenge prospective jurors for cause and, if a prospective juror is not excused for cause, more information to base peremptory challenges on,” he observes. Felter also notes that the order may prove to be a boon to lawyers with large, well-funded clients. “The additional motion practice and related conferences with the trial judge will also increase costs. As in other aspects of litigation, this may advantage parties with deeper pockets,” Felter says.

Kelso L. Anderson is an associate editor for Litigation News.

Keywords: voir dire, jury selection, juror, self-represented, trial

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