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Changes to Voir Dire and Damages Requests

William M. Mandell - Tuesday, September 09, 2014
CHANGES TO SUPERIOR COURT TRIAL PROCEDURE IN MASSACHUSETTS:
ATTORNEY CONDUCTED VOIR DIRE AND SPECIFIC DAMAGES REQUESTS

By: Robert Pierce and Natalia Smychkovich

        On August 6, 2014, Governor Patrick signed House Bill 4123, the “Trial Court Bill,” altering two Massachusetts statutes concerning trial procedure at the Superior Court level.  The new law, effective February, 2015, will substantially alter jury trial practice in two ways: first, attorneys will be permitted to question jurors during the impanelment process and second, counsel will be permitted to propose a specific dollar amount of damages to the jury during trial.

I.    M.G.L. CHAPTER 234, SECTION 28: ATTORNEY CONDUCTED VOIR DIRE
        Prior to the passage of this bill, Massachusetts remained the only state in New England, and one of the few states nationwide, that did not permit attorney-conducted voir dire.  Voir dire is the questioning of prospective jurors by a judge or attorneys in court prior to trial.

        Currently, the process of voir dire in Massachusetts is controlled by the judge in any given trial.  As a way of screening for bias, a basic questionnaire is provided to jurors before they appear for jury duty.  During impanelment, in a typical case, only the judge is permitted to ask the potential jurors any questions during the selection process.  Most judges are receptive to asking the panel or specific potential jurors questions that the attorneys want to be asked.

        The recently signed bill modifies the statute governing voir dire practices, M.G.L. c. 234, §28, in pertinent part, as follows:

(1)  In addition to whatever jury voir dire of the jury venire is conducted by the court, 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.
 (2)  The court may impose reasonable limitations upon the questions and the time allowed during such examination, including, but not limited to, requiring pre-approval of the questions.

        Essentially, the procedure has been changed to allow attorneys the benefit of direct examination of potential jurors prior to selection.  The statute language is open-ended in a way that allows the courts to maintain reasonable control over the process.  The court policies, practices and procedures remain unclear at this time, and there will undoubtedly be a learning curve as the new practices are adopted.  Many questions are left to be answered:
  • Will attorneys be questioning the potential jurors individually at sidebar or as a group in open court?  
  • Will opposing counsel be afforded the opportunity to raise objections to certain questions?
  • Will the judge, as is the case in some states, leave the court room during voir dire?

        Approximately one week after the bill was signed, the Massachusetts Supreme Judicial Court formed a committee to work with the Superior Court to develop procedures for the implementation of the new statute.

        Support for the new statute came primarily from the Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys.  Recent studies have shown that Massachusetts has one of the lowest plaintiff personal injury win rates in the nation. Plaintiffs’ attorneys have voiced concerns that the public has grown suspicious of lawsuits due to a growing perception that many lawsuits are frivolous and unfounded, and that many potential jurors may be unintentionally biased against plaintiffs.  The plaintiffs’ bar and other supporters of the act hope that the new measure will provide attorneys and judges with more information about potential jurors, reducing prejudices and making Massachusetts a more plaintiff-friendly state.  On the other hand, as defense counsel, we will have an equal opportunity to expose “pro-plaintiff” jurors.

        Additional emphasis will now be placed on jury selection and more time will be spent writing effective voir dire questions.  Jury verdict research may be beneficial in helping attorneys utilize this new procedure in an efficient way.  In addition, Pierce & Mandell attorneys will be reaching out to fellow defense lawyers in other states to explore best practices for attorney-conducted voir dire.  While the bulk of cases will continue to resolve through summary judgment or settlement, the new voir dire procedure will certainly increase trial costs.

II.    M.G.L. CHAPTER 231, SECTION 13B: REQUEST FOR SPECIFIC AMOUNT OF DAMAGES

As part of the same bill, an amendment was made to M.G.L. c. 231, §13B. The following sentence has been added to the statute: “In civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.”  Prior to this addition, the statute read,
No complaint in any civil action shall contain an ad damnum or monetary amount claimed against any defendant, unless such ad damnum or monetary amount claimed indicates damages which are liquidated or ascertainable by calculation and a statement under oath by a person having knowledge thereof is attached to such complaint setting forth the manner in which the amount of said damages was calculated. For the purposes of this section complaint shall include a claim, crossclaim or counterclaim.

Simply stated, in personal injury cases, juries were previously presented with monetary amounts for special damages such as medical expenses and lost earning capacity, but were left without guidance as to what amount (if any) should be awarded for intangible damages such as pain and suffering, loss of companionship, disfigurement, etc.  Typically, in their closing arguments, plaintiffs’ lawyers would specifically list the special damages, and then tell the jury that they should award a substantial amount for pain and suffering, and to use their common sense in arriving at an award

Several questions remain to be answered. First, to what extent will the plaintiffs’ bar overreach, meaning request an unreasonably high sum? Certainly, such a strategy could backfire on plaintiffs. In cases where the plaintiff prevails, will juries award the amount requested, or some lesser (or greater) amount?  Given the general sentiment regarding personal injury lawsuits in Massachusetts, juries very well may be aggravated by obviously inflated dollar amounts suggested by attorneys, possibly leading to lower awards for plaintiffs.

Also, it is unclear whether the amount plaintiffs are requesting will be disclosed in discovery, or at a minimum, prior to closing arguments.

While more emphasis will be placed on proving what amount of money intangible damages such as pain and suffering are worth, it is not generally our practice to counter amounts suggested by plaintiff’s counsel.  As a practical matter, for most of the cases that Pierce & Mandell tries, the focus of our defense is on liability rather than damages.  In other words, in a typical case, we are seeking a defense verdict rather than attempting to limit the damages award.  Of course, in a high exposure, likely liability case, more time would be spent on breaking down the plaintiff’s damages claims.


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