Last month, retired Howard County Judge Dennis M. Sweeney wrote an article in a series of articles he is writing for the Daily Record. The latest article discusses voir dire. One point Judge Sweeney makes is that judges have an aversion to proposed voir dire questions that seem to be uniform in every case the lawyer tries. In my last trial, the defense lawyer did not change the names of the parties from the voir dire that had apparently been cut and pasted from the last case. Judge Sweeney writes that they may poison the trial judge to ignore specific voir dire questions – usually put at the end of voir dire consistent with cut and paste practices – that may have more merit.
The article also points to dicta in Landon v. Zorn, 389 Md. 206 (2005), a failure-to- diagnose medical malpractice case in which the Plaintiffs appealed a defense verdict. The basis for the appeal was the trial judge’s refusal to ask whether the jury panel had any “preconceived opinion or bias or prejudice in favor of, or against Plaintiffs in personal injury cases in general and medical malpractice cases in particular?” The Maryland Court of Appeals affirmed in a unanimous opinion written by Judge Clayton Greene, Jr. that it is the responsibility of the attorneys to “propound voir dire questions designed to elicit potential bias from jurors, and not to bootstrap a tort reform argument on appeal to a general question inquiring into any potential ‘bias or prejudice’ against plaintiffs in personal injury or medical malpractice cases.” But as Judge Sweeney notes, the court did indicate that the lower court may have had an obligation to include a question more tailored to the plaintiff in that particular case if requested by the attorneys. Judge Sweeney went on to say that this “places counsel in the position of having to ask the question in many different formulations to hit on the one that may be correct and specific enough.”
But Maryland trial judges love to rush through voir dire as it is so I shuttered to imagine giving multiple formulations to these judges. I wrote to Judge Sweeney and asked if he had any solution to the Landon v. Zorn problem of having to ask the question in many different formulations to find the most appropriate, noting my concern about how multiple formulations of the same question might risk annoying the court.Judge Sweeney offered this practical response:
“I agree with you that putting multiple formulations in the voir dire could be counter productive if the judge is not receptive. Perhaps, a better way to handle it is to have the alternate formulations ready to propose if the judge tells you he will not ask the first proposal. Sometimes making the question more focused or narrow will get a judge to ask a question on the subject even if the question asked is not your first preference. If you feel strongly that the issue is one of great importance in picking an unbiased jury, I would not simply let a denial go by without communicating that feeling to the judge and providing him or her with an alternative formulation. You can even invite the judge to fashion his/her own as long as it fairly covers the issue. Obviously you have to pick the case and the issue carefully.”
It sounds like this solution gives Maryland lawyers the best shot at getting the court to pick a helpful voir dire question while also providing a legitimate appellate issue if a legitimate question is refused.
I’ve never conducted voir dire in another jurisdiction but I observed voir dire in other states. The difference is amazing – as different as checkers and chess. Do you think we should have more extensive voir dire in Maryland? I asked Judge Sweeney that as well:
“My answer is that it depends. We pick juries quickly in Maryland and there is a benefit in that, but obviously we want fair juries. My experience has been that jurors are incredibly conscientious and work hard to reach a fair decision. I don’t know that putting prospective jurors through a lot more questioning is going to improve juries. However there are cases where it would probably be better to have additional questioning on issues of potential bias. I would not want to abandon our very efficient system which I think is generally fair in the process. It is also important to remember that jurors are basically forced labor given the pay they receive which is next to nothing. We should not waste their time or invade their privacy more than we absolutely need to get a fair jury.”
I’ve always been in favor of more elaborate voir dire because I really believe there are a small minority of jurors that plaintiffs are never going to be able to get to no matter what the facts. To a lesser degree, I’m sure there are also some jurors that defendants do not have a fair shot to persuade. So I think a process of more open-ended questions would give lawyers an opportunity to flush out more dogmatic thinkers and I think the current process favors defendants in personal injury cases. But, obviously, Judge Sweeney is right that there are judicial economy issues that strongly favor the current process and the mere asking of more questions is not going to weed out many biased jurors.
Thank you to Judge Sweeney for taking the time to share his thoughts with me.