Bar News - August 23, 2013
By: Kristen Senz
Many attorneys in NH choose not to conduct panel voir dire, even when they are entitled to by law. Is it a missed opportunity?
Editor’s note: The following is an enhanced version of the article published in the Aug. 23, 2013, issue of Bar News, adding comments from NH Superior Court Judge Jacalyn Colburn.
Twenty people are in a box, looking at you with a mix of curiosity and skepticism. You have about 10 minutes to make them open up and tell you about deeply held convictions they might not even realize they have. Ready? Go.
For attorneys, conducting panel voir dire is risky. Done poorly, it can alienate the entire jury before the trial even begins. Done well, it can result in better use of peremptory strikes and potentially a fairer verdict.
With a task so challenging and stakes so high, it might not be surprising that the majority of civil trial attorneys in New Hampshire regularly waive their right to conduct voir dire. But if there’s any truth in the notion that trials are won or lost during jury selection, does it make sense to give up the chance to participate in selecting the triers of fact?
Judges in state and federal courts have differing views on the degree to which attorney-directed voir dire produces better juries. Those judges interviewed for this article said they believe the practice has value, especially in cases with potentially controversial or sensitive issues.
“I think it’s a valuable tool, and it should be used more,” NH Superior Court Chief Justice Tina Nadeau said. “The lawyers probe a bit deeper than the general information about the case. We’ve seen jurors change their minds as they’re listening to the lawyers.”
Without counsel-conducted voir dire, the process of picking a fair and impartial jury relies mainly on the jurors themselves. After the judge reads off a list of general questions, to which the lawyers are often allowed to contribute, jurors selected at random are asked if they answered yes to any of the questions. If a potential juror volunteers a “yes” answer, he or she must approach the bench and discuss any issues with the judge and counsel.
Ten years ago, a legislative study committee recommended extending a pilot program allowing panel voir dire in civil cases to all 10 counties. Effective January 2005, an amendment to RSA 500-A established the right of attorneys to conduct voir dire in every civil trial, following the court’s questioning. According to the law, the purpose of this informal dialogue with prospective jurors is to “prompt jury reflection, probing, and subsequent disclosure of information, opinion, bias, or prejudices which might prevent a juror from attaining the requisite degree of neutrality required.”
Voir Dire Do’s and Don’ts
The following list of panel voir dire do’s and don’ts were culled from tips and anecdotes provided to Bar News by trial lawyers in New Hampshire. Special thanks to attorneys Matt Cairns, Larry Vogelman, and Jack White.
Do prepare and practice.
Don’t do all the talking.
Do start off with a provocative, open-ended question.
Don’t repeat a question.
Do use information from juror questionnaires to personalize questions.
Don’t allow one person to dominate the dialogue.
Do ask jurors to respond to each other’s answers.
Don’t focus too narrowly on the facts of the case.
Do follow up with another question.
Don’t ask superficial or yes or no questions.
Do make sure to listen closely to responses.
Don’t be too rigid with your questions and the order in which you ask them.
Do allow your personality to come through.
Don’t miss the opportunity to educate the panel about the themes of your case.
Do direct most questions to individuals, rather than addressing the group.
The pilot project largely dispelled fears that attorneys would use voir dire as a chance to advocate for their clients or that the process would significantly lengthen trials. But the law applied only to civil cases, leaving to judges’ discretion whether attorneys can conduct panel voir dire in criminal cases (attorneys in first-degree murder and capital cases in New Hampshire conduct individual voir dire). Some attorneys believe counsel-led voir dire is more important in criminal cases than civil and should be a statutory right (see related opinion article).
NH Superior Court Judge Will Delker, a former homicide prosecutor at the NH Attorney General’s Office, said he allows attorney-led voir dire in criminal cases with special circumstances.
“My practice is that if the lawyers can articulate that there’s something unique about the case that would be very difficult for me to flesh out in general questions, then I’ll allow it,” he said.
Likewise, US District Court Judge Steven McAuliffe said he will allow attorneys to conduct voir dire when they make a convincing case about its value. “It’s not a blanket ‘no,’” said McAuliffe, who like all federal judges has discretion over whether to allow attorneys to conduct voir dire in both civil and criminal trials. “It’s more of a persuade-me-that-it’s-a-good-idea kind of thing.”
NH Superior Court Judge Jacalyn Colburn said she routinely allows attorney-led voir dire in criminal cases when either party requests it.
“It is not requested on a regular basis, but is more often sought in complicated or factually unique cases,” Colburn told Bar News in an email. “In my opinion, any reasonable tool available to select a fair and unbiased jury is a tool worth utilizing. In the interests of judicial economy, particularly given our full dockets and limited resources, I do apply time limits to the process. The minimal time restrictions have not posed any problem that I am aware of.”
NH Superior Court Judge John Kissinger, who has been on the bench for just over a year, said he began allowing lawyer-led voir dire in some criminal cases after seeing its impact in civil trials.
“I had an experience in a civil case where a few jurors who would have passed wound up being excused for cause as a result of the panel questioning, and I’ve seen a few other cases like that,” he said. “So, I don’t believe it’s necessary in all criminal cases, but I think it has a place in the jury selection process.”
There are a variety of reasons why attorneys choose not to conduct voir dire in civil cases or request it in criminal cases. Delker said he thinks one reason many attorneys shy away from it is that they haven’t honed their approach.
“The whole dynamic is very awkward, so a lawyer really needs some good interpersonal skills to really draw jurors out and to make jurors feel comfortable answering questions in that type of situation,” he said. “Putting together a group of friends or colleagues and trying out some different approaches would be helpful.”
Since he joined the federal bench five years ago, Chief Judge Joseph Laplante has generally permitted attorney-led voir dire in civil and criminal trials, a fairly unusual practice among federal judges. He said about 75 percent of attorneys ask to conduct voir dire in civil cases, while about 25 percent request it in criminal trials.
“I’ve seen it conducted with varying degrees of skill and effectiveness,” Laplante said. “The best voir dire conducted by attorneys involves initiating a conversation with the jurors, usually using a somewhat provocative question… In almost every case, it helps the lawyers make their peremptory strikes in a more informed way.”
Laplante has asked other judges in federal and state courts, in multiple jurisdictions, about their views on attorney-conducted voir dire. “One question a lot of judges have is, ‘Does it result in better juries?’” he said.
It’s a tough question, because the theory can’t be tested. It’s impossible to conduct the same trial twice, once with voir dire and once without, so concrete evidence of better justice with counsel-led voir dire simply isn’t available. Laplante said he isn’t sure if the practice results in better juries, but he is confident that “it doesn’t diminish the quality of juries.”
“The adversary system of justice is already employed in every phase of litigation – discovery, legal and factual motion practice, fact-finding at trial, sentencing in criminal cases, and even jury selection,” Laplante said via email. “Attorney-conducted voir dire is just an incremental extension of adversary practice further into jury selection.”
For attorneys, deciding whether to conduct panel voir dire in a civil trial requires a cost-benefit analysis. Increased training and experience would add to the “benefit” side of the equation for litigators in New Hampshire, where counsel-led panel voir dire is still a relatively new practice. The legislative study committee report in 2003 included the recommendation that “the State’s only law school be encouraged to include instruction on conducting a voir dire examination in its curriculum.”
Albert “Buzz” Scherr is a professor and director of the trial advocacy program at the University of New Hampshire School of Law. He said the study committee’s recommendation was never passed on to the law school, but the school’s curriculum does address voir dire, with an increased emphasis on panel voir dire since the law change.
“Before 2005, we were explaining and teaching students about individual voir dire, because that’s really what the experience was in New Hampshire,” he said.
Scherr added that voir dire in any form is often difficult for trial lawyers.
“It’s almost like managing a classroom… It’s really a different skill than anything else you do in the trial… Just because you’re a really good trial lawyer doesn’t mean that you’re going to be good at either group voir dire or individual voir dire, because a lot of times, we like to insert our views, rather than listen.”
As more attorneys make use of and request the opportunity to conduct voir dire, it’s possible that judges might allow it more frequently in criminal trials.
“I could see, as the lawyers get better at it, potentially allowing it in more cases,” Judge Kissinger said.
Rockingham County Attorney Tom Reid conducts voir dire during a criminal trial on Aug. 5 before Judge Will Delker in Rockingham Superior Court. Represented by Richard Samdperil (left), the defendant was charged with assaulting a police officer and other charges related to a single incident in Deerfield.