In August, Gov. Deval L. Patrick signed into law Chapter 254 of
the Acts of 2014 ("the voir dire law"), allowing
attorney-conducted voir dire in the state of
Massachusetts. Its passage permits attorneys to question potential
jurors in Superior Court trials, with the goal of obtaining a fair
and impartial jury. Judges maintain authority to impose reasonable
limitations on the process by overseeing the type of questions
asked and the amount of time an attorney is permitted.
In addition, the new law allows attorneys to suggest a monetary
amount for damages suffered by a plaintiff in a civil trial. This
is another long-sought after change that will enable jurors to
receive guidance in determining monetary damages, rather than
estimating a figure.
Douglas K. Sheff, immediate past president of the Massachusetts
Bar Association, said of the bill, "This is a major victory for
fairness in the courtroom - a great asset moving forward."
The signing of the voir dire law had been a long time
coming for many Massachusetts trial attorneys. Both the
Massachusetts Bar Association and the Massachusetts Academy of
Trial Attorneys (MATA) had advocated for attorney-conducted
voir dire for more than 20 years.
In 2013, both the MBA and MATA again filed bills, which State Rep.
Garret Bradley (D-Hingham) consolidated into a broad based
tort-related bill. State Rep. Christopher M. Markey (D-Dartmouth),
acting chair of the Judiciary Committee, was also very instrumental
in the final passage of the law, which, after passing through the
Senate and the House, was signed by the governor on Aug. 6, 2014,
making the commonwealth the 40th state to allow voir
"This is a tremendous victory for litigants and attorneys who
deserve cutting edge procedures to eliminate the potential of bias
or racism from any court proceeding," said Martin W. Healy, the
MBA's chief legal counsel and chief operating officer. "We are
grateful to the legislative leaders in the House and Senate for
advancing this much needed improvement to our trial system."
History of voir dire
Voir dire is a French term that refers to the practice of
questioning a juror to determine if they will be fair and impartial
in hearing the case. While the practice has been used in the United
States for more than 200 years, in Massachusetts, it has remained
exclusive to judges, who traditionally ask potential jurors a list
of yes or no questions, and jurors respond with a show of hands.
Without opportunity for questioning, trial attorneys have been
forced to make decisions based on assumptions.
Those who have been advocating for voir dire feel that
when questioned by an attorney rather than a judge, jurors may feel
less intimidated and offer a more meaningful and honest
"It's difficult in a group setting for a person to answer a
question about their own prejudices," said MBA President Marsha V.
Kazarosian. "Voir dire is the only way to hear what's on a
potential juror's mind."
Advocates have also felt that attorneys, who are most familiar
with the details of the case, should be responsible for formulating
and steering their questions appropriately. While some innovative
Massachusetts judges have allowed attorney follow-up questions, it
has been on a case-by-case basis.
"By asking questions, [the attorney] can filter who should and
should not be on a jury," said Sheff. "Jurors may not even know
they have a bias, but something exists that may make them an unfair
The process can also help uncover if a juror is affected by
outside influences or has circumstances going on in their personal
life, which could alter their ability to hear the case
Trial attorneys in the commonwealth have been advocating for
voir dire for more than two decades. Past attempts were
met with resistance, with critics fearing that allowing the
practice would negatively impact both costs and time.
Court officials had raised concerns that voir dire could
considerably lengthen the time it takes for jury selection.
However, the new law gives the judge final authority over the
process, allowing them to specify the questioning time each
attorney is allowed.
Cost has been another dispute; the Office of Jury Commissioner
estimated it would result in an additional 154,000 summonses mailed
next year, increasing postage cost, printing cost and juror
expense. Expense would also be passed along to employers of the
potential jurors, who are obligated to pay a juror's wages for the
first three days of service.
However, Superior Court Judge Dennis Curran did an independent
study of actual court cases that showed concrete savings of costs
with less jurors needed.
"The first question should be about the fairness of a trial," said
Sheff. "Cost should be second to that."
Sheff, who has been in discussions with colleagues in other states
where voir dire is commonplace, said he is confident that
the process will save time in the long run.
"Once a lawyer becomes good at it, it can be done in a reasonable
time frame, and it may eliminate bad results that can come from
bias jurors, such as appeals," he added.
The attorney's role
While the focus of voir dire is on questioning,
Kazarosian said that when done well, an attorney doesn't approach
the opportunity by presenting a series of questions. Rather, he or
she tries to engage the men and women of the potential jury in a
"With true attorney conducted voir dire, it's more of a
conversation with a jury pool, rather than question and answer
session. The attorney brings up situations - past cases, things
that are potential hotbeds - and tries to draw out conversation,"
"A juror may not say they have a prejudice, but something comes
out in conversation that raises doubt if they'll be able to hear a
case impartially," she said. "I've seen it happen myself; people
believe in a concept that would prohibit them from making an
Like any new process, trail lawyers should expect a learning
curve, and the MBA will offer educational classes about voir
dire once details are finalized about the new law's
implementation. In addition, Kazarosian pointed out that there are
many Massachusetts lawyers who also practice in states that permit
voir dire, so they are familiar with the process and will
become resources for sharing their knowledge.
How long it takes to perfect it will vary with each person, said
Kazarosian. "It depends on a lawyer's level of comfort conversing
with the group, engaging in give and take conversations."
Supreme Judicial Court Chief Justice Ralph D. Gants had formed a
committee to study the implementation of voir dire during
the legislative debate over the pending bill, naming Sheff to serve
as the representative from the MBA. Chaired by Justice Barbara A.
Lenk, the group will also include representatives from other
organizations and the five Massachusetts Trial Court departments
that conduct jury trials.
While still in its early stages, the committee's goal is to
improve the quality of voir dire by identifying best
practices and proposing revisions to the rules of criminal and
civil procedures. When committee recommendations are released, they
will be applied to all courts that conduct jury trials.
Kazarosian said that it is currently too early to tell exactly how
the process will unfold; specifics, including whether potential
jurors are to be approached a group or one-on-one, have not been
"Presently, the bill has left it at the discretion of the trail
judge. That can vary; some judges may be more limited than others.
And it's likely to change over time, as both judges and lawyers
learn more about the process," she said.
For trial lawyers in the Bay State, the passage of Chapter 254 of
the Acts of 2014 has ushered in long-awaited improvements to the
Jason Scally contributed to this article.