Governor Dannel P. Malloy should be bold in proposing reform in the state’s courts. It is not that the judiciary is opposed in principle to change. But bench and bar are inherently conservative. They cherish the status quo, even if the current manner of doing business is wasteful. Someone needs to take a leadership role. Who better than a new governor?
All it would take would be a simple piece of legislation to reduce the backlog of cases in the criminal and civil courts, cut the cost to both plaintiffs and defendants of taking a case to trial, and, as a result, improve public confidence in the courts. We can do this by eliminating the statutory requirement that each and every juror be questioned outside the present of all others, a practice we call individual sequestered voir dire.
No other state conducts business in this manner. Other states from time to time permit isolated questioning of jurors. But in those states, the right applies only to cases of special sensitivity. The general rule is group voir dire, the questioning of potential panelists as a group. That is how jurors in Connecticut are picked in the federal courts.
Under our current regime, it often takes far longer to select a jury than it does to present evidence. Indeed, it is not uncommon to hear lawyers say that serious trial preparation does not begin until jury selection starts. This, too, contributes to docket creep: Many cases settle after a few days of jury selection, after the parties have been forced to face the strengths and weaknesses of their case, and, incidentally, have raked in a couple of days’ fees for chatting folks up one at a time in court.
The most powerful voices calling for the retention of individual voir sequestered voir dire comes from public defenders, insurance defense lawyers and high-end plaintiff’s lawyers gambling for millions in each case.
To the public defenders, I say simple that there ought to be a rebuttable presumption in favor of group voir dire. If a case presents extraordinarily sensitive issues, such as the death penalty, or the rape of a child, make a case as to why group voir dire is not sufficient. Few folks regard misdemeanor trials as presenting such difficulties. I have heard private practitioners say they never recommend trial in misdemeanor cases because clients can’t afford trial. Are we permitting folks to plead guilty for economic reasons? I suspect it occurs to our shame.
On the civil side, the case for individual sequestered voir dire is even less compelling.
I do not try many civil cases. I prefer the criminal courts. But late last year, I stumbled into a civil court in Middletown. It took four or so days to pick the jury. There was no judge during selection, as is our rule. After years of picking under the steady eye of a judge, I was stunned by how casual the questioning was. We were invited to indoctrinate jurors with pet theories of our case, getting away with as much as our adversaries permitted. That is not the purpose of voir dire, despite what jury consultants and star lawyers contend. I have never had jury selection in a federal civil case take more than half a day, and I suspect I’ve won more than my share of those trials.
The plaintiffs’ bar wants a chance to preach in veiled terms to prospective jurors. Defense lawyers are content to bank fees. But waste is the norm.
There is no evidence that our system of selecting jurors promotes justice. It just promotes the interests and egos of lawyers. That’s one reason I was delighted to accept an invitation to speak at the Quinnipican University School of Law as part of a panel proposing voir dire reform. I hope someone from the governor’s office takes heed. It wouldn’t take much to save money, move the dockets and promote the administration of justice in a system that now operates like the domain of an semi-competent feudal lord.
Reprinted courtesy of the Connecticut Law Tribune.