Dear Readers,
Welcome to the September edition of the Civil Jury Project’s monthly newsletter.
This issue of the newsletter features two articles: one by Retired Judge Mark A. Drummond about various issues pertaining to effective use of voir dire, and another by our Research Fellow, Michael Pressman, about our findings from the responses to our recently-discharged-juror questionnaire.
We are also pleased to welcome two additions to the Civil Jury Project team this month: Hon. Mark A. Drummond (Ret.), who will serve as the new Judicial Director of the Civil Jury Project, and Michael Shammas, who will serve as a Research Fellow for the next year. You will find introductions to both of them in the latter half of this issue.
Lastly, this issue continues the newly launched section on testimonials from recently discharged jurors.
Thank you for your support of the Civil Jury Project. You can find a full and updated outline of our status of projects on our
website
. In addition, we welcome op-ed proposals or full article drafts for inclusion in upcoming newsletters and on our website either by email or
here
.
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Sincerely,
Stephen D. Susman
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September 12th
Jury Improvement Lunch
Denver, CO
October 10th
Jury Improvement Lunch
Houston, TX
November 6th
Jury Improvement Lunch
El Paso, TX
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Voir Dire: Don't Let the Judge Cut You Out
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By Hon. Mark A. Drummond (Ret.), Judicial Director of the Civil Jury Project
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He peers over his bench and you know what's coming. His head starts nodding up and down rhythmically, like one of those dogs in the back windows of some cars. You then hear these words, “Now Mrs. Jones, even though your father was a police officer, your three brothers are officers, and your husband is an officer, you can be a fair and impartial juror, can’t you.”
The juror looks down, then she says, “I can.” You grit your teeth and burn another preemptory challenge.
Ask a trial judge the purpose of voir dire and the answer will be short. “In my opinion, the purpose of jury selection is to assure that the jury is fair and unbiased,” says Hon. John G. Koeltl, New York City, member of the ABA Section of Litigation’s Federal Practice Task Force. “It is not to use the process to slant the jurors to your side,” he adds.
Ask a trial lawyer the purpose of voir dire and the answer will be different. “The lawyers are interested in a partial jury. I do not want an impartial jury. I want a jury that is in my favor from the beginning, and you can quote me on that,” says Paul Mark Sandler, Baltimore, co-chair of the Section of Litigation’s Institute for Trial Training and chair of the Special Committee on Voir Dire for the Maryland State Bar Association. “I do believe that cases are won and lost with the selection of the jury,” he opines.
The trial lawyer's answer to that question will also be longer. Entire books have been written on voir dire. Jury consultants put their children through college on voir dire.
So for this column, I will assume you agree with Sandler that cases are won and lost in jury selection. But if you were to voir dire me, I would reveal two biases.
First, toward the end of my career as a trial attorney, I was espousing what I called, “I'll take the first 12 honest people not directly related to the other party theory.” By this point in my career, I was no longer sure I could divine which way they were leaning by asking what magazines they subscribe to, what cars they drove, or noting the watch they wore into the courtroom. Second, I am a state court judge who always allows the attorneys to question, and I never try to rehabilitate a juror once an attorney has established a bias.
STATE OR FEDERAL COURT?
So, if your participation in voir dire is so crucial to your case, do you have a choice of a court that will give you more voir dire? “There is a difference between jury trial procedures in federal and state courts as to whether to allow the attorneys to conduct voir dire,” says Hon. Marvin E. Aspen, Chicago, co-chair of the Section’s Pretrial Practice and Discovery Committee. “There is a great variance of practice among the states, between counties within a state and even between individual state judges on the same court. The same is true in the federal system.”
So, could you file in either state court or federal court? Wherever the case may be, could you file a motion for change of venue or judge?
You may have more control than you think. The usual mantra is that you get more attorney voir dire in state court. I have heard lawyers from Texas joke that you could almost try your entire case during voir dire if you were in state court in Texas. The mantra for federal court is that you don’t get voir dire. Is that fact or fiction?
VOIR DIRE ATROPHY IN FEDERAL COURTS
“The general practice [in federal court] is that the judge conducts voir dire and usually asks the attorneys to submit, in writing, questions the attorneys may wish the judge to ask,” says Judge Aspen, who was a state trial court judge for eight years before moving to the federal bench. “Somewhat of a hybrid method, which I have used, is for the judge to conduct voir dire and then also allow the attorneys a limited amount of time to ask supplementary questions,” he continues. “However, since the art of attorney voir dire has atrophied so significantly in the federal system in recent years, I have found that most lawyers will now decline this offer.”
Let's admit it: There are some questions you want the judge to ask. You would rather have the judge ask whether an individual juror or someone close to him has ever been involved in a court case, especially when a respected member of the community feels compelled to reveal that he got busted for pot three decades ago while in college. You don’t want to be on the receiving end of that answer.
“My procedure is on our court's website,” says Hon. Robert W. Gettleman, Chicago, associate editor of the Section’s Litigation journal. “I ask the questions in open court and then use the sidebar for follow-up questions with the attorneys. I think it may be a myth that attorneys are not involved in voir dire in federal court.”
ASK FOR VOIR DIRE
Even if you hear through the grapevine that a particular judge does not let the attorneys ask questions, still ask for it. “One of my colleagues once told me that no lawyer
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had ever asked him to be given the opportunity to ask questions,” says Judge Koeltl. Trial attorney David Berg writes, “trial lawyers in the Southern District of Texas argued for individual voir dire so consistently for such a long period of time that at least half the judges now allow it in some meaningful form.”
“I have given attorneys voir dire in every case in addition to using a written questionnaire,” says Hon. Barbara M. G. Lynn, Dallas, national co-chair of the Section’s Judicial Intern Opportunity Program. “The average time they ask for, and usually receive, is between 30 and 45 minutes.”
If you ask for voir dire and are turned down, ask for a written questionnaire. People are more likely to be forthright with their views if allowed to respond to questions in writing on a sheet of paper, as opposed to being asked general questions en masse or being singled out and asked the question by a judge with scores of people listening. “Notwithstanding the presumption of innocence, we found many, many potential jurors who, in response to a written questionnaire, presumed the defendant to be guilty or he would not have been indicted,” recalls Sandler.
KNOW THE LAW ON VOIR DIRE
Know that cases, even in the federal system, have been reversed when the voir dire was not adequate. In Fietzer v. Ford Motor Co. the court stated that a trial court “should permit a reasonably extensive examination of prospective jurors so that the parties have a basis for an intelligent exercise of the right to challenge.”
The key to using that standard is to note the words “reasonably extensive” and “parties.” If you frame the issue as you versus the judge and who is better at doing an adequate voir dire, you are probably going to lose that battle. But you might make more headway if you reframe the discussion in terms of your client, his rights, and his desire to have you involved in the voir dire.
“I have convinced a judge who was dead set against us doing voir dire to give us some time,” remembers Sandler. “His concern was that it would take too much time. I told the court that if he established the time, we could do it, and he agreed. It was very rewarding since the client felt that his lawyers were involved right from the beginning. If clients have a constitutional right to a jury trial, I believe they have a constitutional right to have their lawyer involved in voir dire.”
Finally, read appellate court opinions to see how opportunities in voir dire have been wasted. In one case, counsel was allowed to question the jury for 30 minutes, which was 10 minutes longer than the usual. On appeal, he argued that this limitation prevented him from determining whether the all-white jury harbored biased racial attitudes. The appellate court noted that counsel did not ask any questions about race during his 30 minutes, did not indicate what he would have asked if given additional time, and did not explain his failure to object or ask for additional time when the court indicated his time was up.
In another case, the court placed no time limit on voir dire provided the questions were kept within reason and relevance. After a time, the court told counsel that he had five additional minutes to ask germane or reasonable questions. In denying a motion for a new trial based, in part, on limiting counsel's voir dire, the court noted that a considerable amount of time had been spent on topics such as what football team any particular juror supported to whether he had heard the song “Que Sera Sera.”
In some courts, voir dire is a gift. Use it wisely.
RESOURCES:
Art Press, Ltd. v. Western Printing Machinery Company, 791 F.2d 616 (7th Cir. 1986).
Fietzer v. Ford Motor Co., 622 F.2d 281 (7th Cir. 1980).
US. v. Smallwood, 188 F.3d 905 (7th Cir. 1999).
Browne v. Signal Mountain Nursery, L.P., 286 F. Supp. 2d 904 (E.D. Tenn. 2003).
David Berg, “The Trial Lawyer: What It Takes to Win” (ABA Publ. 2006) at http://tinyurl .com/LNw12-Berg.
[
Voir Dire: Don’t Let the Judge Cut You Out
. Originally published in
Litigation News
, 37:3 (Spring 2012). Copyright © 2012, American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.]
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Hon. Mark A. Drummond (Ret.)
Former Judge of the Eighth Circuit Court in Illinois; Judicial Director of the Civil Jury Project
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Meet Our New Judicial Director!
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We are pleased to welcome the Hon. Mark A. Drummond (Ret.) as the new Judicial Director of the Civil Jury Project at NYU School of Law. Since 2015, he has been a Judicial Advisor for the Project. Mark was a trial lawyer for 20 years before he went on the trial bench. As both a trial attorney and trial judge, he conducted written and oral surveys for each jury trial. In addition, he trains trial lawyers on the most effective ways to present evidence to juries. He has trained United Nations War Crimes Tribunal prosecutors at the Hague and in Arusha, Tanzania. He has trained advocates for the U.S. Department of Justice, the Federated Bar Association of Japan and the Beijing and Shanghai Arbitration Commissions. He has trained advocates throughout the United States and overseas in Tokyo, Beijing, Shanghai, Tasmania, Tanzania, Vienna, Zurich, Frankfurt, the Inner Temple, the Middle Temple, New College Oxford, Keble College Oxford, Nottingham Law School, Scotland, Ireland, Kosovo, Macedonia and the Navajo Nation. For years he has been the program director for teacher training for the National Institute for Trial Advocacy (NITA) in New York City. He is the recipient of the Hon. Robert E. Keeton faculty award from NITA.
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Hon. Mark A. Drummond (Ret.)
Former Judge of the Eighth Circuit Court in Illinois; Judicial Director of the Civil Jury Project
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Meet Our New Research Fellow!
Michael Shammas holds a B.A. from Duke University and a J.D. from Harvard Law School, where he served as editor-in-chief of the Harvard Law Record, the school's long-running student newspaper. He has long been interested in juries and the central role they play in American law. For example, when working with former Harvard Law Record editor-in-chief Ralph Nader to revitalize the student newspaper, he hosted an event in fall 2015 bringing Ralph to speak to Harvard students on civil juries and tort law, and on what role law schools have played in sustaining (and denigrating) these pillars of American democracy. He has written widely about the state of American law, especially tort law, and other issues in outlets ranging from the Huff Post to the National Law Review. He clerked for the Honorable D. Brock Hornby in the United States District Court for the District of Maine and previously practiced law for nearly two years at Paul, Weiss, Rifkind, Wharton & Garrison LLP. He will begin a clerkship with the Honorable Ronald L. Gilman at the United States Court of Appeals for the Sixth Circuit in fall 2020.
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Michael Shammas
is a Research Fellow at the Civil Jury Project
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Testimonials from Recently Discharged Jurors
“I liked learning how the judicial system works. I also found it fascinating to hear people’s life stories during the voir dire process.”
--Elisabeth, New York, NY
“I enjoyed the process of deliberation. I liked hearing the perspectives of my fellow jurors and making a collective decision.”
--Juror, Houston, TX
“I found it a nerve-wracking and powerful experience to declare someone guilty even though I was 100% sure he was.”
--Vera, New York, NY
“It’s amazing how much goes into putting a case together.” -- Juror, Dallas, TX
“I loved the experience because the judge allowed the jury to ask (appropriate) questions to the witnesses. I felt the plaintiff’s attorney did a poor job, so there were many questions I asked to clarify the information and arguments being presented. It was my first time serving and I look forward to being on a jury in the future.” -- Jim, Lantana, TX
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Look out for the October Newsletter!
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Civil Jury Project, NYU School of Law
Vanderbilt Hall, 40 Washington Square, New York, NY 10012
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Stephen Susman
Executive Director
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Samuel Issacharoff
Faculty Director
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Michael Shammas
Research Fellow
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Michael Pressman
Research Fellow
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Kaitlin Villanueva
Admin. Assistant
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