Judge Allows ‘Controlled’ Voir Dire; Verdict $125K

Published: 1:00 am Mon, November 11, 2002

By BAINBRIDGE D. TESTA Massachusetts Lawyers Weekly

A plaintiffs’ lawyer says the key to his winning a $125,000 jury trial in a car-accident case was his ability to persuade the judge to allow a “controlled” version of attorney-conducted voir dire.Superior Court Judge Richard J. Chin allowed the lawyers to conduct an hour-long voir dire at sidebar.During the voir dire, the judge permitted the lawyers to ask a lot of the questions, rather than having the lawyers simply listen in at sidebar while the judge did the questioning (which is the more common practice).Boston lawyer Douglas K. Sheff, whose client sustained a broken leg when two cars collided at an intersection, credited the extended voir dire for his success in the case.The usual questionnaires that jurors must fill out before being empanelled “don’t begin to ferret out biased jurors,” said Sheff. “It’s only through a series of open-ended questions that bias can be uncovered.”The defendant driver was a war veteran with “a lot of jury appeal,” said Sheff. “If the jury had believed his version of events, we would have lost the case because it was a typical ‘he said, she said’ collision.”According to Sheff, judges in Massachusetts are increasingly willing to permit voir dire by lawyers, but attorneys have to delineate why it is important to a particular case.At sidebar, Sheff noted, he had to contend with many prospective jurors who questioned the judicial system.He recalled: “They said that they thought too many lawsuits were being filed, and that monetary awards were often excessive.” Prospective jurors also reported not liking personal injury plaintiffs or their lawyers, said Sheff.But Sheff was apparently able to weed out those with cynical views on the legal system and garner what he reports is only the third plaintiff’s win in Plymouth Superior Court (in Brockton) over the course of the 12 months prior to his case. In that span, Sheff noted, 44 of 46 cases ended in defense verdicts.

Run of the Mill

The car that the plaintiff was riding in broad-sided the defendant’s car at an intersection. The intersection was controlled by a traffic light. Each driver claimed that he had the right of way.The plaintiff’s boyfriend was driving the car. She was asleep when the two cars collided. Her boyfriend was not injured.The plaintiff’s knee struck the dashboard on impact, causing the tibia bone below the knee to fracture.The defendant, a war veteran, was alone in his car at the time of the accident. The driver of a third vehicle that was several car lengths back from the accident scene at impact testified at trial. Her version of events was closer to the plaintiff’s, but her memory of the accident was sketchy, said Sheff.The plaintiff argued that the defendant may have been in a hurry to get home to his wife, who had called him on his cell phone before the accident. There was conflicting testimony about whether the cell phone call occurred before his drive home or immediately prior to impact.The plaintiff’s broken leg required surgery involving open reduction and internal fixation of the bone. She was unemployed at the time of the accident and no claim for lost earning capacity was brought.Both cars were visibly damaged in the accident, although the defendant testified that it was a low-speed collision.The judge heard argument on pre-trial motions for voir dire. His questions to the prospective jurors included several that were proposed by the lawyers during oral argument.Responses from the jury pool caused the judge to conduct sidebar conferences at which “counsel for both parties were able to follow up with multiple questions,” said Sheff.Consequently, “many prospective jurors were eliminated for cause who were obviously unfit to serve, due to bias for either plaintiff or defendant,” added Sheff.The 14-member jury deliberated for “the better part of the afternoon,” before finding for the plaintiff.No appeal was filed.

Holding Out

The statistics from a recent study that identifies the percentage of plaintiffs’ verdicts in the nation’s 45 largest counties are “very telling,” said Sheff.The U.S. Department of Justice conducted a study in 1999 that included five Massachusetts counties — Norfolk, Worcester, Middlesex, Suffolk and Essex. Norfolk County placed dead last in the percentage of plaintiffs’ verdicts returned — just 21.7 percent, while Worcester came in second-to-last, Middlesex third-to-last, Suffolk 39th and Essex 36th out of 45 counties studied in the nation.According to Sheff, when you combine these numbers with the fact that most states (but not Massachusetts) allow juror questioning, it should come as no surprise that juries in Massachusetts are some of the stingiest in the country, he said.“Jurors are stepping into the box virtually unfiltered,” he reasoned.There are several reasons that judges are reluctant to have a formal requirement permitting lawyers to conduct voir dire, Sheff said. Judges want to have the option to allow questioning or not, as they deem appropriate, rather than being told by the Legislature how to run their courtrooms, he explained.There is also resistance because allowing lawyers to pose the questions instead of judges may be perceived by judges as lengthening trials in an already overburdened trial system, he added.One way to keep things under control would be to have a set amount of time during which lawyers could question jurors, suggested Sheff.“This is how it’s done in a number of states,” he noted.In fact, when Sheff was president of the Massachusetts Academy of Trial Attorneys from 2000 to 2001 the group filed proposed legislation that would have limited lawyers to one hour each for voir dire.MATA will file the proposed legislation again in December, according to its new president, Valerie A. Yarashus.

Voir Dire Tips

Sheff urged plaintiffs’ lawyers to ask for voir dire where appropriate, noting that many judges are less reluctant to use the device than before.And getting opposing counsel on board can really help the cause, said Sheff.General, open-ended questions are best, he said, because with a more narrow, leading question “people tend to give you the answer they think you want.”Lawyers should present proposed questions during a scheduled pre-trial conference before the day of trial, or at a lobby conference on the trial date, suggested Sheff.It is also important to ask a series of questions, not just one or two, said Sheff. “Otherwise, you might not get to the root of the matter.”He added that “if I can elicit something telling that’s on the person’s car bumper sticker, that’s a lot more revealing than looking at the answers they gave to stock questions on a juror questionnaire. You don’t really get a sense for the person from the written responses.”