New MA law allows attorneys to question prospecive jurors directly

By Pamela S. Gilman

A new Massachusetts law promises to alter how Superior Court jury trials are conducted, but the full impact is presently an open question.

Gov. Deval Patrick in August signed into law a bill allowing attorneys for the first time in the state’s history to directly question potential jurors.

The practice, known as voir dire, describes the process of questioning potential jurors in advance of a jury trial to uncover biases or other reasons to dismiss the potential juror.

Massachusetts joins 39 other states that allow attorney voir dire.

Under the new law, which will go into effect January 2015, a trial court judge must allow an attorney upon request to ask questions of prospective jurors. However, judges retain the power to set “reasonable limitations” – such as controlling the amount of time allocated to voir dire, and pre-approving questions.

Concurrent with the passing of the law, the Supreme Judicial Court has created a committee to examine the jury selection process, including juror voir dire. The committee – comprised of judges, bar association leaders and practicing attorneys – may eventually recommend amendments to court rules related to jury selection in an attempt to create consistent policies and procedures.

Leading court officials, including SJC Chief Justice Ralph D. Gants, strongly opposed the legislation, claiming it would increase costs and delay completion of trials, as well as undermine the goal of impaneling fair and impartial juries. In light of this opposition, it remains to be seen how much leeway Superior Court judges will allow attorneys in questioning prospective jurors.

Another provision of the new law that received less fanfare allows attorneys to propose a specific dollar amount of damages to a jury. Attorneys were previously prohibited from suggesting to jurors specific monetary figures for non-economic damages.

A key question will be whether the new law will embolden plaintiffs’ attorneys to try more cases rather than settle, now that they can suggest specific monetary amounts for damages, and also question potential jurors about their views on compensation for medical negligence.

Of course, attorneys will still need to prove that the amount they suggest is reasonable. Urging a grossly inflated number for pain and suffering or loss of consortium, for example, could backfire and result in a lower damage award in the end.

Pam is administrative partner of Barton Gilman’s Boston office. She focuses her practice on defending medical professionals against professional liability claims.