Judge Curran a steadfast advocate of attorney-directed voir dire

Issue February 2015 By Mike Vigneux

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 dire.

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 Municipal Court.

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."

Comparative study

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 legislation.

"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 litigation process."

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 judge.

"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 jury.

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 exist.

"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 them."