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Bar News - July 23, 2004 Legislature Updates Trial Practice Rules By: Deborah A. Fauver TWO TRIAL PRACTICE changes were enacted by the legislature this spring—new standards for court approval of all expert testimony took effect on July 16, and a new procedure allowing attorneys to conduct individual voir dire of potential civil jurors will take effect on January 1, 2005. Compliance with the new laws requires more than a quick glance at the statutes, according to lawyers who watched the bills work their way through the legislature. The Bar, the New Hampshire Trial Lawyers Association, and the Superior Court will be offering educational programs for both lawyers and judges in the coming months. There is also a move afoot to challenge the expert testimony law as an improper incursion by the legislature into an area traditionally managed by the judiciary. Expert Witness Testimony New RSA 516:29-a provides that a witness "shall not be allowed to offer expert testimony" unless the court finds that the testimony is based on "sufficient facts or data," is the product of "reliable principles and methods," and has been developed by reliable application of the methods to the facts of the case. The new section does not specify when the court is to make these findings, or whether a hearing is required, but directs that detailed expert disclosures "shall be made" at least 90 days prior to trial, and that experts may not be deposed until the disclosure has been made. Not only must the disclosure provide the expert’s opinions, data, and exhibits, but also the expert’s qualifications, including a list of all publications authored within the last 10 years, a list of all cases in which the expert has testified in the previous four years, and the amount of compensation to be paid to the expert. At a minimum, the new law will require that trial attorneys spend additional pre-trial preparation time with their experts, according to state Rep. Harry Haytayan, a Hudson attorney, who supported the bill as a codification of existing case law. "This law grew out of concerns raised by a medical malpractice study committee last fall," Haytayan said. "The question is how do we ensure that scientific evidence is in fact scientific? This law is an attempt to rein in what has sometimes been perceived as junk science." The new law is deliberately vague on procedure, Haytayan said, because the legislature felt that the courts would be in a better position to adopt specific rules with respect to the timing and specific format of expert disclosures. Haytayan said that the language in the new law was culled from a federal expert disclosure rule, and New Hampshire case law, particularly Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 148 NH 609 (2002), in which the NH Supreme Court adopted the federal expert testimony standard set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Baker, the court specifically noted that its adoption of Daubert "does not require a trial court to conduct a pre-trial hearing in every case involving disputed expert testimony." Superior Court Judge Kenneth R. McHugh said that he does not anticipate holding more hearings in the wake of the new expert testimony statute, but that in most instances judges should be able to resolve expert disputes from the written submissions of the parties. NH Trial Lawyers Association (NHTLA) President Thomas Craig said his organization plans to challenge the new statute, asserting that the change is "procedural" and thus is a matter for court rule-making rather than being a "substantive" change that would be appropriate for legislation. "Like the issue of the unified bar, on which we have had a recent Supreme Court decision, the expert testimony issue is one that is best left to the judiciary, which already has rules in place," Craig said. Attorney Voir Dire Nearly 20 years of advocacy preceded the attorney voir dire change, which, according to Concord attorney Roger Phillips, puts New Hampshire in line with the vast majority of other states. Until now, New Hampshire attorneys in civil cases have not been allowed to pose questions directly to potential jurors, absent a prior written submission, and court approval. Under the new law, judges will continue to ask jury panels the standard conflict of interest questions, and then the attorneys must be allowed "a reasonable amount of time to address the panel of prospective jurors" and to conduct a "liberal and probing examination calculated to discover bias or prejudice…" The trial judge may set "reasonable limits" on the scope of the examination, but is not to request submission of the attorneys’ questions, unless a particular attorney engages in "improper" questioning by attempting to precondition a result, indoctrinate the jury, or delve too specifically into the details of the case. For the last two years, the Cheshire and Rockingham Superior Courts have given the new law a trial run, mandating the new process in all civil jury trials. Judge McHugh heard many of the Rockingham cases. "I thought it would be more onerous than it turned out to be," McHugh said. "It was not as time consuming as I expected, though, I was lucky enough to be working with lawyers who took it seriously and didn’t try to argue their cases through the process." McHugh estimated that prior to the attorney voir dire process, it took 20 minutes, on average, to seat a jury; with attorneys asking questions, the average was closer to one hour per jury. The pilot project made the new voir dire process mandatory, while the new law allows the parties to waive attorney voir dire. In smaller cases, McHugh expects to see fairly regular use of the waiver provision. When attorneys do use the new procedure, McHugh recommends plenty of forethought. "If it’s done right, in a case with a specific issue, the lawyers only need to ask about five questions, then they can identify a potential issue and make an informed judgment," McHugh said. "For example, we had one case where the lawyers told the jurors that they would hear expert testimony from a chiropractor and from a neurosurgeon, and they asked whether any jurors would automatically assume that one of those experts would be more qualified—about 10 hands went up." "The danger is that if the lawyers don’t know what they are doing, and they start asking questions about the McDonald’s coffee case, everyone gets riled up, and I can’t unring that bell," McHugh said. "Then the next question from the lawyers will be whether I will dismiss the whole panel and start over." NHTLA President Thomas Craig followed the pilot project closely, and spoke with several attorneys who tried the new procedure. "It’s a real art, and before you try to do this, you really should get to a CLE," Craig said. Phillips agrees that there is a right way for lawyers to proceed under the new law, and also encourages trial attorneys to take advantage of CLEs, and to call their colleagues in other states. "This process takes a good deal more preparation on the lawyer’s part," Phillips said. "What this gives us is a chance to ask open-ended questions and promote juror conversations," Phillips said, stressing that the attorneys are allowed to ask questions within the hearing of the entire panel. "In the pilot project we found that people would disclose biases [in response to lawyers’ questions] that they would not have understood that they should disclose in response to the judicial questioning process," Phillips said. "This is a substantial change in a lawyer’s ability to get a fair and impartial juror," Phillips said. On the other hand, McHugh’s perception was that the new procedure made "not one whit of an effect on any verdicts."
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