By Dr. Ken Broda-Bahm:
In New Jersey, a Plaintiff recently brought an auto personal injury case to trial. It was one of those scenarios where the damage to the occupants was greater than the damage to the vehicle, so the attorney trying the case properly wanted to know if any prospective jurors on the panel would have a hard time with that idea. Could a crash with minimal property damage still be the cause of major injury, pain and suffering? The attorney wanted the court to explore this attitude through open-ended questions, and New Jersey law actually requires open-ended questions (at least three) as part of voir dire. The judge, however, denied the Plaintiff's request, and instead relied on questions that boiled down to the binary, "Can you be fair?" After a four-day trial, the jury returned with a verdict that essentially paid the outstanding bills but included no damages for pain and suffering. The case, discussed in a recent New Jersey Bar Journal article, went up on appeal, and the New Jersey Bar Association weighed in with an Amicus Curiae brief supporting the Plaintiff and arguing that a denial of open-ended questioning in this case constituted reversible error. "The use of open-ended questions in jury voir dire," the Association argued, "is critical to securing fair, unbiased and impartial decision makers who are fundamental to our system of justice." The appeals court ultimately agreed with this argument and reversed and remanded for a new trial.
In this case, the legal reasons were based in New Jersey law, but the logical reasons for wanting open-ended questioning as the route to uncovering bias apply in all cases, whether the law requires these questions or not. It often surprises me, for example, that even when attorneys are relatively unconstrained in their own oral voir dire, they will too often gravitate to a leading style of questions that only call for "Yes/No" responses. A lawyer's professional orientation toward precision and control leads them to prefer their own language over anything the potential juror might say. But control and precision are tools for argument and for questioning. In voir dire, what is needed are tools to assess the panel's attitudes, and not to test their willingness to go along with whatever formulations the judge or the attorneys have constructed. In my view, voir dire should be dominated by open-ended questioning, and when the potential jurors are doing most of the talking, that is one sign of success. In this post, I'll look at some of the reasons why open-ended questioning ought to be the main tool, and I will share some thoughts on the best ways to ask open-ended questions.