A new era for the Massachusetts legal system began this month
when the highly anticipated voir dire law officially took
effect on Feb. 2 in criminal and civil trials in the Superior
Court. The law (Chapter 254 of the Acts of 2014), which passed last
August, now permits attorney-directed voir dire during the
jury empanelment process.
Hailed as a definitive legislative victory, the Massachusetts Bar
Association and the Massachusetts Academy of Trial Attorneys
advocated for the law's passage for more than 20 years. Thanks to
the symbiotic collaboration of the bench and bar in the
commonwealth, Massachusetts now joins the vast majority of states
that have laws allowing for attorney-directed voir
Although the law is a new measure here, Superior Court Judge
Dennis J. Curran has allowed attorney-directed voir dire
at his discretion in practically all of the civil cases he has
presided over during the last eight years.
"I think it's a tremendous improvement and reform. It gives
lawyers a feeling that there's a level playing field now," said
Curran, who was appointed as an associate justice of the Superior
Court by Gov. Deval L. Patrick in 2007 after serving in the Boston
Curran will be honored with the Chief Justice Edward F. Hennessey
Award at the MBA's Annual Dinner on May 7 for his work with
voir dire. The award is given to individuals who have
demonstrated extraordinary leadership and dedication to improving
the administration of justice.
"Judge Curran has always been one who thinks outside of the box,
always with the goal of ensuring fairness and transparency in this
complex network of process known as litigation," said MBA President
Marsha V. Kazarosian. "He has a practical approach that focuses on
getting to the truth in a human and natural way. The respect that
he has for every aspect of and every participant in the litigation
process is tremendous."
Known as a champion of attorney-directed voir dire,
Curran is the author of "Attorney-Directed voir dire: The
Republic is Safe," a seven-year comparative study of 102 of his
Superior Court civil cases in which attorney-directed voir
dire was permitted.
Curran's study had four main findings in reference to
attorney-directed voir dire: 1) It affords litigants a
fairer trial; 2) It takes little, if any, additional time; 3) It
results in a more engaged and committed jury; and 4) It decreases
the number of jurors required to impanel a Superior Court civil
jury case by 14.5 percent.
His comprehensive study served as an invaluable information
source, which greatly bolstered the call to pass the voir dire
"Judge Curran is a thoughtful and compassionate jurist, and he's
really passionate about improving the administration of justice,"
said MBA Vice President John J. Morrissey, who worked closely with
Curran for several years on the MBA's Judicial Administration
Section Council. "He really understands the demands placed on both
the attorneys and their clients when they're involved in the
During his more than 20 years as a trial lawyer, Curran realized
that the standard written questionnaire given to jurors during the
empanelment process was insufficient in terms of trying to find out
who the jurors really were. In Curran's experience, when the judge
poses questions to the entire venire, jurors may not be totally
forthcoming with their answers.
"Very few people are going to raise their hand and say they are
biased in front of 60 strangers," said Curran. "The questionnaires
are inadequate. They are a good start, but they don't give you a
good sense as to what the individual is like."
Throughout Curran's career on the bench he has seen firsthand that
attorney-directed voir dire leads to a better
understanding of jurors because they have a greater comfort level
when answering questions posed by a lawyer as opposed to a
"I have found that attorney-directed voir dire works
better in finding the lost-cause juror," said Curran. "They
generally give the judge a socially desirable answer. If the
lawyers are diplomatic and not in an aggressive trial posture,
they're able to get better information."
'A fair shot'
Superior Court Standing Order 1-15 was issued this past December
as the result of a bench-bar voir dire committee. The
order provides guidelines on the protocols for how
attorney-directed voir dire should be conducted. Curran
acknowledges there will likely be a learning curve during the first
year of implementation.
Throughout his eight years in the Superior Court Curran has used
attorney-led voir dire without incident. He notes that
it's important for attorneys to maintain respect for the juror in
order for the process to run as smoothly as possible.
In his trials, Curran has encouraged attorneys to submit as many
written questions as they wish to be posed to the venire. Then
Curran has asked virtually every question unless it repeats what's
asked on the questionnaire. Curran has also allowed attorneys to
ask follow-up questions at sidebar to respect the privacy and
dignity of the juror. That relative privacy and face-to-face
interaction has allowed attorneys to probe a particular area of
concern. Curran has stricken jurors liberally sua sponte
if he suspects a bias or hidden agenda.
According to Curran's own experiences, the process moves quickly
and utilizes fewer jurors than the traditional, pre-Chapter 254
method. In approximately 200 cases during his career, only once has
Curran needed a second panel of 10 prospective jurors to impanel a
Curran acknowledges that getting used to the new voir
dire process may require some members of the trial bar to
exercise restraint in the way they approach some of the potential
jurors. He believes their questions should not invade the privacy
of a juror but they should ask questions that provide enough
information to make an informed judgment on any bias that may
"With a firm but gentle hand on the judicial tiller, I think this
will work out just fine," said Curran.
In addition to providing more impartial juries, Curran believes
that having attorney-directed voir dire will ultimately improve the
overall fairness of trials.
"People will feel that they got a fair shot. If they lose, they
got a shot to know who their jurors were," said Curran. "They had a
hand in selecting that jury versus having the judge select it for