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Anatomy of a Civil Trial Voir Dire


A Dying Art in Need of Resuscitation


Henry E. Dugan, Jr. T


here is perhaps no area of the trial lawyer’s craft that compels one to ponder exactly what being a trial lawyer is all about like that of Voir Dire. Even the


goal of Voir Dire is multifaceted. To begin with, we are officers of the court with a fundamental concern about achieving justice for individuals so that we may have a just society but there is that other competing consideration – we want to win! We are advocates for a particular person or cause, so the theory is that if both sides have aggressive advocacy and the judge keeps a level playing field this independent, unbiased liberty and justice for all group of citizens, i. e., the jury, will arrive at a just decision. Sounds good and certainly seems better than any other way of deciding these issues that anyone has yet designed. Tere are problems of course – the advocates for the


parties may not really be equally adept because of experience, intelligence, preparation, etc., and the court may for whatever reason have trouble keeping a level playing field. Te greatest problem, however, is that, in fact, the jury is the playing field as all experienced trial lawyers know. Te jury will determine how many yards each side has to carry the ball in order to score, how many downs each side will receive and how many points each side will receive if they do score. One or more may have already determined that you cannot score. And – oh yeah – they don’t intend to share those rules with the advocates. Te good trial lawyer -- accepting the knowledge is power


principle -- wants to know as much as possible about these silent rule-makers. Voir Dire is patently the only chance to do this and different courts and different judges have taken very different approaches to the issue. In some states the advocates may ask extensive questions of the potential jurors while courts in other states virtually accept the juror’s oath as fully sufficient to vet the jury pool for fairness. In Maryland, the Appellate Courts have made it pretty


clear that they are not likely to ever reverse the trial court for failure to allow much in the way of Voir Dire. For the most part, the trial attorney may request the court to ask some Voir Dire questions that the court may or may not give. Should a potential juror answer one in a way that gives one pause as to their ability to be fair, they are generally then asked


something along the lines of… “Well if the court instructs you that what you just told us is your opinion is not the law, is unjust and horribly unfair, will you put your opinion aside and be fair and follow the instruction of the Court?” Some variation of “certainly” is routinely responded while both of the trial attorneys are thinking to themselves that hell is going to freeze over a millennium before this juror is going to follow the court’s instructions. At this point each attorney is deciding how far the goal posts will move if this juror is seated. At the very least, however, the advocates have some clue as to what they are up against as a result of this exchange. Te Maryland State Bar Association has formed a


Committee on Voir Dire this year chaired by Paul Mark Sandler with the thought in mind that perhaps some useful vetted Voir Dire questions may be prepared, collected and disseminated to the bar as Maryland Pattern Voir Dire that would emulate the extremely well crafted and successful Maryland Pattern Jury Instructions. At present, it is very hit or miss and judge dependent as to which, if any, Voir Dire questions may actually be asked, but if judges felt as comfortable with the Pattern Voir Dire as they do with Pattern Jury Instructions, it would bring a great deal more uniformity and hopefully lead to a wider assortment of more penetrating Voir Dire questioning than exists at present.


It


should certainly lead to a greater appreciation of just how important this part of the trial process is and retire the concept that Voir Dire is simply a quick preamble to the real event.


Trial Reporter / Spring 2012 23


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