UPDATE: "An Analysis of Some Changes in the Legal Landscape" by Jeff Stern

Following modifications/revisions/adjustments to the bill (House #4123), Jeff released an update to the article recently published in the Spring 2015 TMG Newsletter:  

This article was written prior to the issuance of Massachusetts Superior Court Standing Order 1-15, which appears to have reined in, to a significant degree, the potential sweep of attorney-conducted voir dire. From conversations I have had with members of the bar, and in particular the plaintiffs’ bar, there is a sense that optimism about a promised revolution has faded, at least for now.

In its preamble, the Standing Order avers that the statute “recognized and preserved the discretion of the trial judge to lead and supervise the process of juror voir dire.” While that may be true, it was hardly the headline feature.

Substantively, the Standing Order does the following:

  • Any request for attorney (or self-represented party) voir dire must be by motion, identifying proposed topics.
  • The trial judge is to approve or disapprove of the topics, and has the right to pre-approve specific language of proposed questions.
  • Favored topics are jurors’ background with expected issues in the case, preconceptions or biases, and willingness to accept and apply legal principles as instructed by the Court. None of these areas stray very far from prior practice.
  • Perhaps most important, the Orders sets fort as disfavored topics, a juror’s “political views, voting patterns, party preferences, religious beliefs or affiliations, reading or viewing habits” and other similar matters. By so deferring to concerns for juror privacy, the Standing Order essentially eliminates some of the most useful information available about important attitudes and potential biases, exactly the sort of information lawyers on both sides would most want to know and are least likely to be revealed in responses to specific inquiries about biases.

In addition to the above, I have learned that most trial judges are establishing severe time constraints – ½ hour per side is what has been reported to me.

While attorney-conducted voir dire is here, and is likely to evolve, Massachusetts is unlikely to emerge a place where it becomes one of the most important features of any trial as is true in many other jurisdictions. The revolution foreseen by many – including me – seems to be on hold.

Original article:
           "It is a TMG tradition, or so I am told, for neutrals new to the organization to introduce themselves through our newsletter.  While I have been mediating for twenty years, I am the new kid on the block, and so I readily agreed to provide this piece.  My situation is somewhat reminiscent of that guy in the old “Hair Club for Men” ad many years ago, who said “I’m not just the Hair Club president, I am also a client.”  While I actually could be a Hair Club client, the point is that I have been a TMG client.  For many years, Brad Honoroff in particular has been a “go to” mediator for me, and many other attorneys at the firm from which I retired, Sugarman, Rogers, Barshak & Cohen, PC.

            For this article, I decided to write about the passage of a statute in 2014, which has the potential, in my opinion, to change the conduct of civil trials in the Superior Court in Massachusetts in a significant way.  For those readers of our newsletter who participate in such trials (or make decisions based on the potential outcome of such trials) this bill has injected a significant new component of unpredictability.  The bill (House #4123) was signed into law in September.  In essence, it revises the law governing Superior Court jury trials in two ways.  For the first time, it will allow Massachusetts lawyers to conduct their own voir dire to guide jury selection.  Under previous practice, Massachusetts (among a rather small minority of states) required that voir dire be conducted solely by the court, albeit with some limited ability of counsel to suggest questions.  The second change which has the potential, I think, to affect trial outcomes just as much, adds a single sentence to Chapter 231 § 13B: “in civil actions in the Superior Court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.” 
            Without question, the bill was actively promoted by both the Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys (an organization of plaintiff’s lawyers) with an avowed purpose.   That purpose was to address Massachusetts’ reputation (backed by statistics) as a jurisdiction where plaintiffs (in personal injury cases particularly) win less often, and with lower verdicts when they do win, than in most other jurisdictions.  In 1999, a study conducted by the Department of Justice, which examined the 45 largest counties in the country, identified Essex, Suffolk, Worcester, Middlesex and Norfolk Counties in Massachusetts as being particularly skewed in favor of defendants
            Under current practice, judge-conducted voir dire encompasses a rather limited inquiry: does a prospective juror know any of the parties or witnesses, does he/she have any prior knowledge about the case; is there any other reason the juror could not be fair and impartial, etc.  While the new statute includes language (added by a Senate amendment) which allows the court to “impose reasonable limitations” upon attorney-conducted voir dire, most lawyers anticipate that it will become much more far ranging, so as to allow some assessment about social and cultural attitudes that may influence a juror.  For example, a friend of mine who is a plaintiff’s attorney anticipates being able to ask about TV viewing habits, particularly as to news sources.  Jury selection is inherently a matter of guess work and generalization, but knowing that a potential juror gets all his information from Fox News, for example, is at least as useful a source of information as predicting juror attitudes on the basis of where they live and what they do for a living.
            Because the second part of this statute has gotten somewhat less attention (and some feel it was somewhat “under the radar” in the bill), I will discuss it at greater length.  The statute which it amended, G.L. c. 231, § 13B, was passed in 1986, and it had ended the prior practice of pleading an “ad damnum” in a complaint “unless such ad damnum or monetary amount claimed indicates damages which are liquidated or ascertainable by calculation…”  Prior to that 1986 statute, personal injury complaints routinely contained a prayer for damages in a specific amount, usually a highly inflated amount, because plaintiff’s counsel wanted to make sure that the ad damnum would exceed any possible jury verdict.  Ironically, (and perhaps this is why the practice was terminated) the ad damnum was basically a meaningless figure.  It would never come to the attention of a jury, and could never be mentioned in court for any reason.  Given that history, the 2014 amendment to section 13B, authorizing that “parties through their counsel, may suggest a specific monetary amount for damages at trial” has the potential to break completely new ground.  It also creates a huge uncertainty, because the statute is completely silent as to what factors, if any, limit one’s ability to “suggest.”
            The two most widely cited cases in Massachusetts involving improper jury argument about damages involve the same plaintiff’s attorney.  In the first, Harlow v. Chin, 405 Mass. 697 (1989) a medical malpractice action in which the patient was rendered quadriplegic, counsel made reference to the then recent enormous verdict in Texaco, Inc. v. Pennzoil, Co., (a Texas action not involving personal injury), the fact that one minute of advertising time during the Super Bowl costs “2 or 3 hundred thousand dollars,” huge verdicts in airplane crashes and “$5 million dollars” for paintings by Renoir and Monet.  While the Supreme Judicial Court agreed that this argument was both “egregious” and “improper under long established and well understood principles,” it declined to order a new trial, holding that the trial judge had addressed the problem by telling the jury that the closing argument was not evidence.  There was a sharp dissent by two judges who felt that the trial judge’s ­­­limiting instructions were clearly inadequate.  The dissenters would have reversed and granted a new trial. 
In the second case, Gath v. M/A-Com, Inc., 440 Mass. 482 (2003) the plaintiff suffered a brain injury in a bicycle accident, when a gate owned by the defendant unexpectantly swung open into the street.  Reviewing a juror verdict in excess of $14 million dollars, the same attorney again made references to airplane crashes and baseball player’s salaries as in Harlow.  The trial judge in this case, unlike Harlow, did specifically instruct the jury that these references were “not appropriate for closing argument and has no bearing on any issue in this case and should not be considered by you in any way for any purpose.”  As in Harlow, the SJC noted that the argument (which plaintiff’s counsel attempted to defend) was “most improper. The hypothetical references to airplane crashes and baseball player’s salaries had no support in the record, and were obviously intended to suggest by hyperbolic analogy what is expressly prohibited by specific requests:  an award of general damages in particular dollar amounts or categories.”  Despite this rebuke, the verdict was again upheld, as it had been in Harlow.
The question that arises therefore, is whether, or to what extent, the amendment to section 13B is intended to vitiate or weaken the limitations enunciated by the SJC.  More specifically, will the ability of plaintiff’s counsel to “suggest” a figure for general damages be limited to evidence in the record, and what kind of linkage will be required?
It is well beyond the scope of this article to predict how courts will answer this question, but it is highly likely that it will need to be addressed by the SJC within the next couple of years.  Until it is, Massachusetts trials, and particularly in the personal injury area, are in uncharted territory.  What is clearly true, however, is that the plaintiff’s bar advocated for these changes in the belief that they would put a thumb on the scales in favor of plaintiffs.  Those of us in the ADR community will certainly be watching closely to see how that intent, and, prediction, plays out.  The effect of these two statutory changes, however, undeniably will create uncertainty in the near term about potential for high verdicts and equal uncertainty about whether a high verdict based on a high “suggested” figure by plaintiff’s counsel will be sustained on appeal.  It will be an interesting time to be a trial lawyer, and an equally interesting time to be a mediator in this new landscape.
4810-7532-7776, v.  1"