New Massachusetts Jury Selection Law: Fairness for Plaintiffs – Finally

Something happened recently on Beacon Hill, and while it didn’t receive a great deal of buzz or media fanfare, it will substantially level the playing field for plaintiffs in Massachusetts injury suits. Governor Deval Patrick earlier this month signed legislation that will give attorneys the ability to question potential jurors in Massachusetts Superior Court cases. Surprised that this wasn’t always the case? You’d have every reason to be. How has it been handled in the past? Read on.

First, a definition: The process of questioning potential jurors in a case, before a jury is finally selected and empaneled, is called “Voir Dire.” The process is intended to ‘weed out’ potential jurors who may be biased in one way or another. For ‘eons’ in Massachusetts, judges have retained the sole power to conduct voir dire questioning of potential jurors. While judges tended to pose questions that attorneys in the case provided to them, they were never obligated to ask any particular questions that an attorney wanted. Judges retained sole control over the process.

In trying to assess whether a potential juror was biased or otherwise unacceptable to serve, attorneys were limited to reviewing the answers provided in a one page questionnaire given to potential jurors. Stunningly, no verbal exchanges or discussions were allowed between attorneys and potential jurors! Exactly how was an attorney to make an accurate assessment of a potential juror, without engaging in a direct, brief discussion about that juror’s views of the type of case they might serve on? For the plaintiffs’ attorneys involved, the whole process of juror selection was based on speculation and guess work. Care to know just how archaic and outdated this jury selection system in Massachusetts really was? 39 other states – including all of the other New England states – allow attorney-conducted voir dire (make that ten states, now.)

Another stunning fact that this new law corrected: In the past, civil plaintiffs in Massachusetts were not allowed to state a specific damages figure they were requesting from a defendant. So how did juries – in the relatively rare event that a jury would find in favor of an injured plaintiff, that is – reach a particular damages figure? Sheer guesswork. Yes, you read that correctly. Justly, this new law corrects that ridiculous and awful rule. Also justly, it requires plaintiffs to prove their damages claim – as they should – but at least in the future, plaintiffs’ attorneys can argue specific damages to a jury.

In Massachusetts tort cases and Massachusetts injury litigation – in particular Massachusetts motor vehicle accident cases – it was the plaintiffs who suffered in this archaic process of not allowing attorneys to directly question potential jurors and not allowing specific damages figures to be requested in trials, not defendants. Why? Because most people who serve on juries have been tricked into believing that almost every Massachusetts personal injury plaintiff is a malingerer and a liar – someone who’s just looking to “cash in.” As a Boston injury attorney, I can guarantee you that this is not true. The injured clients I have represented in my career have suffered very serious injuries that can change someone’s life forever. These types of cases can vary widely, and just a few examples include:

Massachusetts Car Accident • Massachusetts Slip &Fall accident • Massachusetts Wrongful Death Case • Massachusetts Construction Site Injuries • Massachusetts Dog Bite Case • Massachusetts Nursing Home Neglect & Abuse • Massachusetts Liquor Liability

The two chief bar associations in Massachusetts, The Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys actively supported the bill, arguing correctly (and for the ‘ump-teenth’ time over many years,) that the change will produce both lower court costs and fairer juries. Superior Court judges, however, fought the bill aggressively, claiming that attorney-conducted voir dire would increase court costs by increasing the time it takes to select a jury and by requiring a larger pool of jurors. Apparently, many of these judges never stopped to consider what the primary purpose of the courts and the civil justice system is: Justice and fairness, not economies of scale. With the passage of this new law, plaintiffs’ attorneys will soon be able to actually question some jurors who they suspect might harbor biases against their clients. Imagine that!

This change – long overdue in Massachusetts – will produce fairer juries and much more just outcomes.