Since the country’s founding, there has been a recognition of how important it is for citizens, through their attorneys, to have a say in selecting jurors for their legal cases. “If you go back all the way to original notes on the Seventh Amendment in the Constitutional Convention, attorney-conducted voir dire was such an integral part of what (the founders) believed to be a fair trial process that the original draft to the Seventh Amendment included attorney-conducted voir dire,” told David Harak of the Harak Law Firm to The Daily Record.

Ultimately, the language in the Seventh Amendment itself was broader, highlighting “the right of trial by jury” and “the rules of common law” for lawsuits. More than two centuries later (238 years to be exact), debates over attorney-led voir dire are still underway. In fact, they’re gaining new steam.

Most states allow attorneys to take part in questioning jurors—but not all. Some states, like New Jersey, have strict limits against this practice. Over the last couple of years, New Jersey has launched pilot programs to consider changing the law. 

These followed an Order from the New Jersey Supreme Court, which noted that “New Jersey is one of only a handful of state court jurisdictions that continue to use a judge-led system of voir dire. Many scholars, jurists, and practitioners advocate for an alternate approach known as Attorney-Conducted Voir Dire (ACVD). While different forms of ACVD exist, the general model is one in which attorneys question jurors, typically as a group, under the oversight of a judge who intervenes if and as appropriate, including for sidebar discussions and determination of challenges.”

Attorney-led voir dire can be essential in giving clients their best shot at a fair trial. When practicing in states that allow attorneys to question jurors, the people represented often get better outcomes. In these states, the defendants -- often large, powerful corporations with huge sums of money to spend on legal maneuvers -- know that I’ll be able to weed out jurors who may have unconscious biases against my client. They’re therefore more incentivized to settle before or during a trial.

The arguments against attorney-led voir dire often revolve around questions of time and fairness. “Some judges advocate minimal voir dire because they believe that extensive pretrial questioning could ‘waste too much time and unduly invade jurors’ privacy,’” a 2021 study explained. “Those judges and proponents of minimal voir dire assume that potential jurors can spontaneously self-identify their sources of bias, are willing to admit them and, when they do acknowledge biases, can set them aside and be impartial after undergoing judicial rehabilitation.”

The research by a team of professors from four universities (Arizona State University, the University of Denver, Cornell and Stanford) found flaws with the thinking about how voir dire often works. “First, it is assumed that individuals are both aware of and willing to acknowledge their biases during voir dire. Second, it is assumed that jurors who acknowledge their own biases can be ‘rehabilitated’ through a procedure whereby a judge informs prospective jurors that they must set aside their biases and asks them explicitly whether they can agree to do so.”

Focused on civil cases, the study found that, “Judicial rehabilitation did not reduce the biasing impact of their preexisting attitudes on case judgments—but did result in mock jurors reporting that they were less biased, despite judicial rehabilitation not actually reducing their bias.” The group concluded that, “Attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases has little utility.”

Many Americans have biases against personal injury plaintiffs. They’ve been exposed to the idea that these kinds of claims are bogus. Perhaps the most infamous example became known as “hot coffee.” As NPR reported, the case became a legend, with people believing that a woman foolishly put hot coffee from McDonalds between her legs and was ultimately awarded nearly $3 million from the company because it spilled. The reality, exposed in a documentary, was very different. Given the extent and location of the severe burns, and how they apparently occurred because that particular McDonalds did not follow its own safety guidelines on water temperature, the plaintiff did not get nearly enough. Tellingly, the laypersons or legal professionals who viewed the burn images and learned about the actual liability details felt the same way.

All sorts of experiences and beliefs can lead good people to enter into a trial without a fair and open mindset. How are litigants (plaintiffs or defendants) to determine if their jury pool’s bias is based upon knowledge (or ignorance) of important facts of “famous” personal injury matters, like those exposed in the Mcdonald’s documentary, or other inherent bias accumulated over a lifetime of corporate/media, rather than factual, information? When a civil case makes it to trial, the plaintiff and defendant have the right to expect a fair trial. Agreeing on a jury based upon meaningful discussion and inquiry, rather than a “gut feeling” and expediency, is a key part of making that happen. It’s time to ensure that all Americans, in every state, have this chance.

The views expressed in this article are solely those of the author and do not necessarily reflect the opinions of The National Law Review.