As I have written many times, I’m a big fan of David Ball’s book “Damages 3.” I’ve read the entire book more than once. I’m ready to take a quiz on the contents.
But I would fail the portions of that quiz on voir dire. It is hard for Maryland attorneys to get excited about voir dire because we know so little about the jurors we pick. At my last trial, I picked out during the juror roll call who I thought should be on the jury. After voir dire, not a single thing changed. (Maybe a little expectation bias? Sure. Still.)
Were my initial judgments based on useless stereotypes and facial expressions? Sure. But making a decision based on the fact that a prospective juror served on a criminal jury in 1993 or that his mother once had a fractured femur is similarly without foundation. It is like the woman (or man) who marries solely based on how attractive their spouse is criticizing someone who marries for money. Maryland trial lawyers just don’t get the opportunity to use real information to evaluate potential jurors. So we are left with stereotypes and Malcolm Gladwell “blinks” to make our decisions.
The Maryland State Bar Association has a trial lawyer, Henry Dugan, who is in charge for a one year stint, and is now seeking uniformity in voir dire and is exploring the development of model voir dire instructions.
Uniformity would be of some use, I guess, because judges are making incredibly different calls on voir dire, leaving Maryland lawyers with no idea of what to expect. But model voir dire would hardly be revolutionary. But maybe model voir dire is really a path to real voir dire. The MSBA press release specifically notes that in other jurisdictions, trial lawyers ask prospective jurors questions designed to figure out whether they do have bias or will be fair and impartial. Does this signal the MSBA is going to push for full scale voir dire? Why make that point if it was not an issue on the table? Allowing trial lawyers to question jurors is real voir dire. This would be a game changer.
MSBA is establishing a new Committee on Voir Dire, chaired by Paul Mark Sandler, to develop uniform model voir dire instructions which will parallel those the Association has for model jury instructions. This Committee will figure out what the model voir dire should be. But I think they may go to the next level and recommend that Maryland lawyers be able to question jurors directly.
This would change Maryland jury trials. Lawyers who pick up voir dire skills are going to have a real competitive advantage. Voir dire is going to lead to more impartial juries but, ultimately, it is going to reward the best trial lawyers in Maryland at the expense of the least competent. But that is not a bad thing. We want to make jury trials as fair and impartial as possible. If that puts more burdens on parties, particularly in civil cases to get the best lawyers, it is a trade-off worth making I think.
I’m putting the cart ahead of the horse a bit, of course. This is far from a done deal. I’m not sure MSBA supports full blown voir dire and, even if it does, will the Maryland Court of Appeals go along. Certainly, trial judges are going to have concerns about how long jury trials will take if lawyers conduct significant voir dire given the crowded courts we already have. But this is the biggest buzz we have ever had to change Maryland’s voir dire which some say is the most restrictive voir dire in the entire country.