In this podcast, Rob Mazow explains the concept of voir dire and its applications in Massachusetts. He explains how attorney-conducted voir dire helps attorneys ensure their clients get a fair, unbiased jury.
John Maher: Hi, I’m John Maher and I’m here today with Rob Mazow of the Law Office of Mazow McCullough. Today we’re talking about voir dire in Massachusetts. Welcome, Rob.
Rob Mazow: Thanks, John.
What is Voir Dire?
John: Rob, what is voir dire, and when was it implemented in Massachusetts?
Rob: Well, voir dire has been around for as long as the justice system of Massachusetts has been around. It’s the way that attorneys pick juries. It’s done across the country in different ways. In Massachusetts, until relatively recently, our voir dire was limited to written questions that prospective jurors were asked to answer before they came in for jury duty. And based upon those very limited questions, the lawyers were allowed to ask, through the judge, very limited questions.
John: Okay.
Rob: Picking a jury would happen at sidebar, where the judge would loom over the prospective jurors and the defense lawyer. And either the prosecuting attorney or the plaintiff’s attorney would be standing there, and the judge would ask the questions. And somehow in Massachusetts, we were supposed to be able to pick a fair jury that way with very limited information. So, voir dire, big picture, is the manner in which you screen and survey prospective jurors to sit on a trial.
Goal of Attorney-Conducted Voir Dire
John: Okay. And so, what is the goal of attorney-conducted voir dire?
Rob: Up until very recently, probably within the last 10 years, Massachusetts finally caught up with how 99% of the other states handled voir dire. Other states for many, many years, allowed attorneys to stand in front of the jury pool. And when I say jury pool, I’m talking about the prospective jurors, could be a 100 people, 200 people, whoever comes to respond to jury duty that day.
The lawyer can ask questions to determine whether or not the people that are going to be sitting on their client’s trial can be fair. It is a conversation that you can have with jurors.
I mean there are rules that are still involved, but for the most part, it allows a conversation to take place between the lawyers, myself for instance, and the prospective jury to get an understanding as to how they might handle this particular case, whether it’s a car accident or in a criminal case, it’s a drunk driving case. Allowing attorney-conducted voir dire, in my experience, has allowed us to get a much better idea of what kind of prospective jury might be sitting on that trial and give us a better and more fair jury.
Process of Examining Prospective Jurors
John: Okay. So, what is the procedure for examining prospective jurors? How does that sort of look when you’re getting ready for a trial to begin?
Rob: In Massachusetts, under normal circumstances, and when I say normal circumstances, I’m talking about pre-pandemic, because things have not gotten back to what they were, but they will. The way it works is the lawyers will request of the judge that they want to conduct attorney-conducted voir dire. And the judge may require you to provide certain topics of inquiry that you’re going to ask.
When the juror pool is brought in, the plaintiff’s attorney will go first and we’ll be able to ask questions based upon the categories that you had identified to the court that you were going to ask, but also reasonable questions that arise from that. And sometimes, unfortunately, judges limit the amount of time that you have. It could be a half an hour to try to get a panel of 12 to 14 jurors to be fair.
John: And like you said, you could be interviewing 50 or 100 different jurors.
Rob: Yeah, you have to be very efficient, you have to have very careful questions. Other states, you can go days. The courts here in Massachusetts are not ready to do anything like that.
John: Okay.
Peremptory Challenges and Dismissing a Juror for Cause
Rob: They want to move these cases, they want to not disrupt the process. So the times that I’ve done it, I could be limited to a half an hour to try to get a fair jury. Even that half an hour is better than what it used to be when you couldn’t do that at all. But the process is, I can ask questions, the defense attorney can ask questions. And then if an issue is brought up that maybe a juror can’t be fair, I would bring that up with the judge and say, “I would like this jury dismissed for cause.”
You can dismiss any juror if you can establish that there’s a reason for cause. Cause would be if they’re biased or they have some preconditioned idea of what the case is about or they just can’t be fair.
You have less peremptory challenges. You’re limited to two or four peremptory challenges, which is you can excuse a juror for any reason, exclusive of race, by just saying, “I’m going to excuse this particular juror.”
Questions Allowed During Voir Dire
John: Okay. And so, are there certain questions that are allowed or not allowed during the questioning?
Rob: Again, specifically to Massachusetts, they are very careful about what you can do. It would be inappropriate to go in and start asking questions of who you voted for. “Are you a Republican? Are you a Democrat?” That would be considered inappropriate.
The questions would be more like, “How do you feel about personal injury cases? How do you feel about somebody who says that they’ve been injured and are here to ask you for money? Are you the kind of person that could do that? Raise your hand.” And you try to get somebody to …
Somebody inevitably will start and I’ll say, “Okay, juror number 12, I see that you raised your hand in response to my question about how you feel about personal injury cases. Tell me about that.”
John: Right.
Using Voir Dire to Learn About Juror Biases
Rob: Let’s assume it’s a male. He’d say, “The McDonald’s hot coffee case really has bothered me. And I say, “Bothers me too. I get it. I get that what we’re led to believe about certain personal injury cases can leave a bad taste in your mouth. But what if my client showed you that their injury prevented them from working for six months, and caused them to lose use of their arm. If I were able to show that to you and that it happened as a result of somebody else’s fault, would you be able to award monetary damages?”
John: Right. If I could show you that this wasn’t a frivolous lawsuit?
Rob: Exactly. I try to separate myself and my case from … Because I’ll agree with them. Nobody wants a frivolous lawsuit. I mean, what is a frivolous … Nobody wants that. But if I can engage them in a conversation like, “There may be some frivolous lawsuits out there, but not this one. If I could show you that this one, my client is deserving, and this one, they’ve suffered a real tangible injury, how would you feel then?” And they would either say, “In that case, I could do it.” Or some people might say, “I just can’t.” And I’d say, “Okay.”
John: Just feel the same way. I hate all these cases.
Rob: Right. And I’d say, “Thank you, juror number 12.” And I go to the judge and somebody said, “Juror number 12, he can’t sit. He’s just can’t possibly listen to the evidence and he-
John: He couldn’t be fair. He’s only going to vote in this one way and not the other way.
Rob: Exactly. When you come into court, everybody’s nervous. You come in on a jury … You don’t know the person sitting next to you. It’s all these people in their suits and their robes and it’s intimidating. But if I can try to block that out and just have a conversation with you, Mr. Juror Number 12, and then once you answer and we’ve exhausted our conversation, I can say, “Who else agrees with Mr. Juror Number 12?” And somebody else will raise it.
John: That might eliminate a whole other group of people.
Rob: Or that will lead to other conversations. And then that would lead to, well, somebody might say, “I could award money damages. How do you show that?” And then we’d have a conversation about what they would want to see in order to give damages like that.
How the Jury Selection Process Works
John: Right. So you said that the plaintiff’s attorneys start and then the defense attorneys also can ask questions. Do you then say, “Well, I would like to have these particular people on the jury,” and the defense submits their list of people and then you’ll see what the overlap is? Or how does that end up getting narrowed down to the actual jury that gets brought in for the trial?
Rob: So the first thing you can get rid of is somebody, like I said, for cause. Cause would be a bias, somebody who is admitted or it’s clear that they cannot handle the case or there’s some medical issue or they have something that a judge might have to excuse them for. They’ve had surgery tomorrow, they just can’t sit with us. Those people would be excused and they would literally leave the courtroom. They’d be excused.
At some point, the clerk will call up 12 to 14 people to sit in the actual jury box. Now I say 14 because two would be an alternate once the trial gets started. The other 60 or 70 people are still in the back of the courtroom listening to what’s been going on. But I’m directing it to these 12 to 14 people, my questions.
Now, once those 12 to 14 people have sat and the ones for a cause have been excused, now it is, who do I want to get rid of for peremptory? Now peremptory again is I can get rid of two people for any reason, but I also have to be aware of who are the next two that are coming in. I have a little bit of information from what they’ve filled out. So it’s-
John: Okay.
Cases Can be Won or Lost During Voir Dire
Rob: It’s a chess game. Everybody wants a fair jury, but it’s definition of fairness, that’s what it comes down to, whose idea of fairness, the defense attorney’s idea, or my idea.
John: Right. So, do you feel like voir dire and in particular attorney conducted voir dire is a really important part of conducting a fair trial?
Rob: Absolutely. I think cases are won or lost in voir dire. If you can pick the right jury, pick the jury that is at least empathetic and at least is not automatically against your client for whatever preconceived reason they might have, you’re ahead of the game. All right.
So in my opinion, it is a game changer. Attorneys are still not doing it as much as they should be doing it. Judges are still not allowing it to the extent that they should be allowing it. But I think we’re getting better verdicts, we’re getting better juries as a result of that.
Voir Dire Helps Clients Get a Fair Trial
John: Right, because at least you’re starting at a fair place and then it’s up to you as the attorney to make your case and to present that case to the jury in such a way that they argue are in favor of your client.
Rob: Exactly. And as long as you’re not making promises in voir dire that you’re unable to fulfill during the trial, you’re at least getting some credibility with the jury. They don’t look at you as this lawyer with the fancy suit on. They look at you hopefully as a real person having a conversation and you represent a real person with the goal that you’re going to get a fair verdict.
John: And even giving them a little bit of an education as to how to be a fair juror.
Rob: Exactly.
John: Right.
Rob: Exactly.
John: All right. Well, that’s really great information, Rob. Thanks again for speaking with me today.
Rob: Thanks, John.
Go to HelpingInjured.com to Learn More
John: And for more information, you can visit the website at helpinginjured.com or call 978-744-8000.
