SIX MONTHS INTO the attorney-conducted voir dire pilot project in Cheshire and Rockingham counties, attorneys and judges who have experienced the process aren't sure it's worth the extra time and effort.

In January 2002, HB 588 established a two-year pilot project for attorney-conducted voir dire in civil jury cases in Cheshire and Rockingham superior courts. During the pilot, all civil juries in those courts are being selected using a procedure in which attorneys have the opportunity to question potential jurors to identify their possible prejudices before the jury is seated.

During the first six months of the pilot project, NH Superior Court Judge Kenneth McHugh sat in Rockingham County and presided over the most civil jury trials using attorney-conducted voir dire - about 10 (in addition to several civil jury trials that used the process but didn't go to full trial). According to Barbara Hogan, clerk of Cheshire County Superior Court - the other pilot site - that court at press time hadn't yet had a civil jury trial in which to try out attorney-conducted voir dire.

While most states allow lawyers to conduct voir dire during jury selection, New Hampshire's current system, in use in the other eight counties and in all of its criminal trials, allows juror questioning only by the trial judge.

Much of the process McHugh uses in his courtroom for attorney-conducted voir dire is the same as traditional jury selection. The jury is still drawn from a pool of 100 potential jurors, who all remain in the room while the jury is selected. Prior to jury selection, all potential jurors fill out questionnaires in which they provide general information such as where they live, how many children they have and their occupations. Those questionnaires are submitted to the judge and plaintiff's and defense counsel.

In the pilot process, McHugh opts to put 22 randomly selected jurors in the box; from these, the 12 jurors will be selected. This method leaves room for each side to exercise its five challenges. After the judge asks his general questions of the potential jurors, the attorneys are then allowed to conduct their voir dire. Sometimes attorneys' questions are general and directed to the entire jury; other times they are specific to the case and directed at individual jurors. "The theory is that any biases these potential jurors have can be discovered if the lawyers have a chance to question them," said McHugh.

In the voir dire pilot project, attorneys can still challenge for cause and still have five preemptory challenges, as in regular civil trials.

Once the voir dire and challenge processes are complete and a jury is chosen, the trial proceeds as usual.

McHugh said that when the pilot project began, his concern was that lawyer-conducted voir dire would considerably lengthen the jury selection process. It hasn't been as bad as he feared, though: In the 10 trials McHugh has presided over that have used the pilot process, the jury draw took about 45 to 90 minutes, only about twice as long as the typical jury draw time of about 20 to 30 minutes. He said that for more complex cases, the lawyers spend a lot more time asking questions of jurors, but in minor cases, they may simply ask one or two questions. During a complex medical malpractice case, for example, attorneys' questions were more in-depth and directed at individuals rather than the whole group. It is up to the judge to determine just how in-depth those questions become, said McHugh. "It's my call whether the questioning is getting too tedious. Opposing counsel can, of course, object if the questioning is going a bit too far."

McHugh said that when the voir dire pilot project was established, he was a pessimist. "I thought it would take three hours to draw a jury, but it hasn't. I thought the jurors would be offended by being 'interrogated' by attorneys, but that hasn't happened either. The lawyers recognize that they don't want to make enemies of the jurors," he said.

In terms of results of trials, McHugh hasn't found the voir dire pilot project to have made much difference so far. He believes the verdicts and awards he's seen in those trials that utilized lawyer-conducted voir dire haven't been any different from decisions that would have been made had attorneys not been allowed to question jurors. "I haven't seen a case in which I thought the result would have been any different - a case that indicated this new system is either better or worse."

Attorney Dennis T. Ducharme of the Manchester law firm Wiggin & Nourie has had the opportunity to question jurors in three civil trials under the pilot project. All three were personal injury cases in which he represented the defendant.

Ducharme said he takes a "minimalist" approach to questioning potential jurors - he waits to see what plaintiff's counsel does and plays off that. He tends to be very conservative in posing questions, mixing specific question directed at specific jurors with general questions, being careful "not to do anything that will set off any bells and whistles," he said.

Ducharme believes that so far, attorney-conducted voir dire has made a "marginal difference."

"I've had a total of three or four jurors about whom I've found out something I wouldn't have without this process and was glad I had found out," said Ducharme. "[Attorney-conducted voir dire] doesn't add a lot to routine cases. It hasn't hindered any of my cases in terms of undue delay, which some feared, but it's hard to say whether it's improved anything."

Ducharme pointed out that it's difficult to gauge the difference attorney-conducted voir dire may be making on trials. "My big concern is how does anyone know if it is making a difference? You don't get to try the same case with voir dire and without," he said.

Mark F. Sullivan of the Sullivan Law Office in Exeter is a plaintiff's attorney who has tried two cases using lawyer-conducted voir dire. Both cases were "garden variety" personal injury cases and he has asked only one question during his voir dire: "Are people on motorcycles rather than driving cars not to be trusted?"

Sullivan said that he isn't sure how valuable asking that question was. He was hoping to ferret out any bias against motorcyclists such as his client, but a verdict that found his client 80 percent negligent and the driver of the car only 20 percent negligent indicates to him that there are pre-conceived notions that even lawyer questioning can't uncover.

"I've found that once the judge goes through all his questions, he has unearthed most biases, but there are some cases in which people are just more sympathetic to a particular side but believe they are neutral," Sullivan said.

Sullivan thinks that the judge's juror questioning is sufficient, but at the same time believes that attorney-conducted voir dire should be made a permanent process because of its potential. "So far it hasn't proven that effective, but it also hasn't hurt. It does present the opportunity for attorneys to meet the jury members," he said.

Since Ducharme thinks that the process hasn't positively influenced his cases, he is in favor of abandoning it at the end of the two-year pilot. "I don't think anybody can prove that it's improved anything. There was nothing wrong with the way jury selection was - juror prejudice and bias were brought out through judge questioning."

"I'm not of the school of thought that we need to fix our state's jury system. I think we have a good system that was working," added Ducharme.

McHugh said that the jury is still out - pun intended - on whether voir dire should be made permanent and expanded to superior courts across the state. He pointed out that the process would be harder to institute in smaller counties, where it would be difficult and expensive to make available an extra 10 jurors during jury selection.

McHugh said there are positives, though, about attorney-conducted voir dire. "Sometimes a lawyer is able to cleverly ask a question that helps flush out unknown prejudices," he pointed out. "The process does give a degree of confidence to lawyers and their clients. They get the feeling that they're getting the best jury possible, that they're getting a fairer shake."

"But at the end of the two-year pilot, if the bar decides lawyer-conducted voir dire hasn't proven effective and simply adds more time to trials, we may decide it's just not worth it," said McHugh.

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