by Dan T. Silverman, Esquire; Costello & Mains
During the pre-trial conference, one of the most significant battles that an attorney can wage is over how voir dire will be conducted. Voir dire is the process by which attorneys determine if potential jurors are fit to participate in the case. The phrase derived from the Latin verum meaning, "that which is true." In some states, attorneys are allowed to directly question potential jurors; however, in New Jersey, the questions are asked by the Judge.
Judges in New Jersey are constantly attempting to make sure that their Court Rooms are moving cases along in an efficient manner. For this reasons, judges, and some attorneys, look down upon extended voir dire as an annoyance that slows jury selection and the eventual trial. Some judges may attempt to tell lawyers that they have their own voir dire which they use and insist that the parties use such a model. Too often, those limited voir dire compose only yes and no questions. It is critical that all attorneys stand up and insist upon full voir dire including open ended questions. It is only through such open ended questions that the parties and their attorneys will be able to gain a true sense as to whether or not a potential juror is fit for that specific matter.
The New Jersey Appellate Division has once again weighed in on the subject and again insisted that the trial courts must use full voir dire, including open ended questions. In Erga v. Chalmers, A-2632-12T4 (July 16, 2014), the Appellate Division held that it was reversible error to fail to ask jurors open ended questions during voir dire. "Compliance with Directive #4-07 is required of all trial judges, and the trial judge's failure to do so here mandates reversal." In doing so, the Court relied upon Directive 4-07 promulgated on May 16, 2007 which provides, in part, that open ended questions must be asked in every voir dire. The Appellate Division noted that the trial court appeared concerned about the length of time associated with such questions, but cited another Appellate Division decision, State v. Morales, 390 N.J. Super. 470 (App. Div. 2007) as stating, "we recognize that the Directive may cause jury selection to take longer, but that has been deemed an acceptable price to pay for a jury without bias, prejudice, or unfairness with regard to the trial matter or anyone involved on the trial."
The lesson is clear. Trial courts do not have the discretion to deny attorneys full voir dire of potential jurors. These are questions that we must insist upon in every single matter, and if a trial court denies full voir dire, create a full record so that the same is preserved for appeal. Directive 4-07 is available online at https://www.judiciary.state.nj.us/directive/2007/dir_04_07.pdf. The open ended questions every civil trial lawyer in New Jersey should be familiar with include:
- What do you think about large corporations that are named as Defendants in lawsuits? Would you consider the legal rights and responsibilities of the corporation differently than those of an actual person? Why do you feel this way?
- Do you have any feelings about whether or not society is too litigious, that is, that people sue over things too often that they should not sue over; or do you think, on the other hand, there are too many restrictions on the right of people to sue for legitimate reasons; or do you think that our system has struck the right balance in this regard? Have you heard of the concept of "tort reform" (laws that restrict the right to sue or limit the amount that may be recovered)? How do you feel about such laws?
- There may be expert witnesses in this case. If there are, I will instruct you in more detail, let me say for now that you do not have to accept their opinions, but you should consider their opinion with an open mind. The expected field of expertise of these witnesses is ___________________. How do you feel about experts in that field? Will you be able to evaluate their opinions fairly and with an open mind? Why do you feel the way you do about this?
- Do you have any particular feelings about whether people should be allowed to sue doctors, hospitals, and other healthcare providers if they are dissatisfied with their results of medical treatment? Tell me how you feel about this and about what kind of circumstances you think should have to be proven before a dissatisfied patient should be allow to recover damages?
- How do you feel about the jury system? Do you think you lawsuits would be better decided by some sort of professional hearing officers, arbitrations panels, or judges? In our country, under our Constitution, in cases such as this one, people have the right to a jury trial. If it were up to you, should that right continue to exist or be eliminated?
- Do you believe that you will make a good juror for this case? Please explain.