Voir dire literally means “to speak the truth.”1 The modernFrench translation of voir dire is “to see and say”; therefore, voir dire is to see prospective jurors and hear what they have to say in response to questions about their prospective service as a juror.2 In the modern jury system, voir dire is the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury. It is the process by which attorneys select, or perhaps more appropriately reject, potential jurors on a case. Allowing attorneys sufficient time to conduct voir dire is essential to ensuring a fair and impartial jury because it is the only opportunity attorneys have to question jurors about potential bias.
Historically, as trial judges on civil cases became concerned about the amount of time spent on voir dire, attorneys on both sides of the aisle, as well as the judiciary, became concerned about arbitrary (or unreasonable) time limits being imposed on voir dire.3 When arbitrary or unreasonable time limits were imposed, the trial attorney’s ability to identify biased jurors arguably became just as arbitrary.4 In response, the legislature recently amended Section 225.5 of the Code of Civil Procedure, making it clear that unreasonable and inflexible time limitations shall not be imposed on voir dire in civil cases.5 The amendments further clarify that trial counsel shall be permitted supplemental time for questioning potential jurors when certain factors are triggered, counsel shall be allowed to make a brief opening statement before voir dire, and requests to use juror questionnaires shall not be arbitrarily refused.
Similar amendments have recently been made to the statutes governing voir dire in criminal proceedings. The focus of this article, however, is on the amendments regarding voir dire in civil trials and methods for civil practitioners to utilize the amendments in conducting voir dire.
The importance of having sufficient time to conduct voir dire is rooted in the constitutional right to an unbiased jury. Over 100 years ago, the California Supreme Court recognized that the “right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the constitution.”6
The California Supreme Court noted that, “‘[w]ithout an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled. [Citation.] Similarly, lack of adequate voir dire impairs the defendant’s right to exercise peremptory challenges where provided by statute or rule….’”7
As the U.S. Supreme Court has also stated: “Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.”8
The California Constitution guarantees parties a trial by an impartial jury as “an inviolate right.”9 California law requires jurors to be able to fulfill their role with “entire impartiality.”10 The impartiality of the jury is an “essential attribute” of the historic right to a jury trial, without which the substantial right to a jury trial is violated. “We therefore conclude that the real essential attributes of the so-called common-law jury trial were at all times ‘number, impartiality and unanimity.’”11
As incorporated into the statutory language, the purposes of voir dire are, among other things: 1) to select a fair and impartial jury and 2) to assist counsel in the intelligent exercise of both peremptory challenges and challenges for cause.12 In utilizing voir dire for these purposes, counsel must be allowed a “liberal and probing examination to discover bias and prejudice with the circumstances of each case.”13 “Counsel should at least be allowed to inquire into matters concerning which…the population at large is commonly known to harbor strong feelings that may…significantly skew deliberations.”14
Only by allowing thorough voir dire can a party intelligently assess whether to challenge a juror for cause. Challenges for cause can be made based upon: “(A) General disqualification— that the juror is disqualified from serving in the action on trial; (B) Implied bias—as, when the existence of facts as ascertained, in judgment of law disqualifies the juror; (C) Actual bias—the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.”15
Under Section 225.5 and Rule 3.1540 of the California Rules of Court, the trial judge in a civil case begins voir dire with an initial examination. After the completion of the trial judge’s examination, counsel for both parties have the right to conduct questioning.
Rule 3.1540 provides: “Examination of prospective jurors in civil cases” states that, “(b) In examining prospective jurors in civil cases, the judge should consider the policies and recommendations in standard 3.25 of the Standards of Judicial Administration.”16 Standard 3.25 is a rather lengthy direction to the trial judge that “the examination of potential jurors should include the following areas of inquiry and any other matters affecting their qualifications to serve as jurors in the case.”17
Standard 3.25(a)(1) provides, in relevant part, that: “The examination of prospective jurors in a civil case…should include all questions necessary to ensure the selection of a fair and impartial jury…. During any supplemental examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover possible bias or prejudice with regard to the circumstances of the particular case.” Standard 3.25(a)(2) provides, in relevant part, that: “In exercising his or her sound discretion as to the form and subject matter of voir dire questions, the trial judge should consider, among other criteria: (1) any unique or complex elements, legal or factual, in the case, and (2) the individual responses or conduct of jurors that may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case.”18
Standard 3.25(c) directs the trial judge to actually tell jurors that “the parties are entitled to have a fair, unbiased, and unprejudiced jury.” It includes various topics to be covered by the trial judge during voir dire, and the list is extensive. Examples include: the nature of the case, including alleged injuries or damages; whether the juror feels the type of case should be brought into court for determination by a jury; whether the juror or anyone with whom the juror has a significant relationship has ever sued in connection with a similar case; whether any of the parties, witnesses, or attorneys come from a particular national, racial, religious group (or may have a different lifestyle) that would affect the juror’s judgment; or the all-encompassing question of whether there is any other reason that might make the juror “doubtful they would be a completely fair and impartial juror in this case”.19 Each of these areas of inquiry is designed to elicit honest responses from potential jurors that may shed light on potential bias.
It frequently may take longer than five minutes per juror for an attorney to follow up on the topics covered by the judge. In fact, many of the topics produce answers by potential jurors that require extensive follow-up by an attorney, which is recognized by Section 222.5: “The fact that a topic has been included in the judge’s examination should not preclude additional non repetitive or non duplicative questioning in the same area by counsel.”20
It is critical to note that Standard 3.25 starts by directing the trial court to tell jurors that “the parties are entitled to have a fair, unbiased, and unprejudiced jury” and ends with the trial court’s asking if there is any reason “that might make them doubtful they would be a completely fair and impartial juror in this case.” As such, blanket time limits with little flexibility affected trial counsel’s ability to follow up on these topics and uncover potential bias.21
In fact, a new trial can be granted when a juror conceals during voir dire “a bias, belief or state of mind which prevents a juror from following the court’s instructions and acting in an impartial manner.”22 Also, the imposition of arbitrary time limits on voir dire can be argued to constitute an irregularity in the proceedings that may support a new trial.23
Section 222.5 was enacted in 1990 to include procedures governing the selection of a fair and impartial jury in civil trials.24 These procedures were designed to ensure that a party had sufficient opportunity to question the jury and prohibit unreasonable and arbitrary time limits for attorney voir dire.25 Even with recent amendments to Section 222.5, trial counsel in civil matters were still concerned that unreasonable and arbitrary time restrictions were being imposed on attorney examination during voir dire. These restrictions prompted California SB 658, which sought to amend section 222.5 and foreclose arbitrary time limits on attorney voir dire.
The author of the proposed statutory amendments noted: “The selection of an unbiased jury serves all parties and is crucial to maintaining the integrity of our courts. Currently, judges are setting blanket, arbitrary, and unreasonable time limits for voir dire. Judges use their discretion to set these limits even though CCP §222.5 specifically states not to set blanket time limits. SB 658 would address the issue of unreasonable and arbitrary restrictions on attorney examination of potential members of a jury. Liberal and probing voir dire is necessary to ensure that the Seventh Amendment right to a jury trial is meaningful. The current statute was intended to prohibit these limitations, but its enforcement has eroded in the quarter century since its passage. Attorneys have reported that in some courts there are arbitrary limits of 20 or 30 minutes for voir dire in unlimited civil jurisdiction cases. Such limits contradict the original intent of the statute.”26
Effective January 1, 2018, Section 222.5 has been amended to reflect the strong policy prohibiting restrictive time limits on voir dire in civil trials. In fact, the recent amendments make clear that unreasonable and inflexible time limitations shall not be imposed on voir dire. Even though the scope of attorney examination during voir dire is left to the sound discretion of the trial judge, the judge is required to consider the enumerated factors, which include the following: the amount of time requested by trial counsel; any unique or complex elements—legal or factual—in the case; length of the trial; number of parties; number of witnesses; and whether the case is designated as a complex or long cause. These considerations are meant to fashion the scope of voir dire towards the circumstances of the “unique case” that is before the court.27
The amendments to Section 222.5 also make clear that counsel shall be permitted supplemental time for questioning jurors when any of the following factors are shown: individual responses or conduct of jurors that may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case, composition of the jury panel, and an unusual number of for cause challenges. For instance, unanticipated responses to the topics listed in Standard 3.25 may prompt the need for additional time to question prospective jurors.
Prior to the recent amendments to Section 222.5, a party could request that it be allowed to make a brief opening statement before voir dire. However, the statute was not clear as to whether allowing this mini-opening statement before voir dire was mandatory upon attorney request.28 Amended Section 222.5 states that, if requested by a party, a brief opening statement shall be allowed by counsel for each party prior to voir dire, thereby removing any doubt as to whether granting an attorney’s request for a mini-opening is mandatory or not. By presenting in a nonargumentative manner the liability and/or damage issues or unique circumstances the jury will be asked to decide, the mini-opening statement affords counsel an opportunity to more efficiently question jurors during voir dire.
Finally, as an additional tool to more efficiently question jurors within time allotments, amended Section 222.5 provides that a trial judge should not arbitrarily or unreasonably refuse to submit written questionnaires when requested by counsel. The contents of questionnaires must be approved by the court. As such, opposing counsel desiring to use a juror questionnaire are encouraged to work together in submitting mutually acceptable questions. The statutory amendments also make it clear that parties shall be given reasonable time to evaluate the questionnaire responses before oral questioning commences.
Because Section 222.5 mandates that counsel should be permitted to conduct a “liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case” and “in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause,” it is critical for counsel to identify the unique “circumstances of the particular case” that require more time to conduct a “liberal and probing examination.” One method to identify the unique circumstances that require more time is to identify the applicable CACI Instructions and ask for pre instruction.
In fact, it is prudent to ask the trial judge if the key jury instructions can be read and discussed with jurors. It is improper to ask “any question which, as its dominant purpose, attempts to precondition the prospective jurors to a particular result, indoctrinate the jury, or question the prospective jurors concerning the pleadings or the applicable law.” 29 But one of the directions in Standard 3.25(c) is that the trial judge will ensure jurors “will, without reservation, follow the court’s instructions and rulings on the law and will apply that law to the case.”30 A juror will need to know what the law is before the judge and counsel can make sure the jury will follow the applicable jury instructions.
On this issue, the California Supreme Court held that “a reasonable question about the potential juror’s willingness to apply a particular doctrine of law should be permitted when from the nature of the case the judge is satisfied that the doctrine is likely to be relevant at trial.”31 The supreme court reasoned that a juror’s blanket promise “to follow whatever instructions the judge may give” may not disclose an attitude or bias towards a specific law that has not been identified. For example, “although nearly everyone adheres to the proposition that the law should be obeyed, a substantial number of motorists, when confronted with the 55-mile-per-hour speed limit…demonstrate that attitudes expressed in the abstract are not always applied in, or on, the concrete.”32 The court ultimately held that the defendant could ask prospective jurors in a murder case in which the defense was self-defense: “Would you willingly follow an instruction to the effect that a person has a right to resist an aggressor by using necessary force and has no duty to retreat?”33
The supreme court also confirmed that a trial judge can preinstruct prospective jurors during voir dire on key instructions of law.34 Therefore, counsel should ask permission of the court to read key jury instructions and ask for sufficient time to question prospective jurors on whether they understand the instruction and will they follow the instruction if it is given by the court.
Another important issue which frequently takes a significant amount of time to discuss with prospective jurors is the topic of damages and, more specifically, a prospective juror’s ability to award damages. Although there is not a significant amount of relevant case authority on the topic, a leading treatise confirms that plaintiff’s attorneys are usually permitted to question prospective jurors as to their ability to return a large verdict if supported by the evidence.35 If counsel represents the plaintiff, he or she should inform the court before trial of the intention to discuss this topic with prospective jurors and the need for sufficient time to do so.
Every good trial attorney is aware that a civil trial can be won or lost in voir dire. After spending years and thousands of dollars (and sometimes hundreds of thousands of dollars) on costs alone to get a case ready for trial, the critical process of voir dire should not be rushed. Fortunately, with enactment of the recent statutory amendments, it is hopeful from the legislative record that a proper balance between the court’s discretion in guiding proper questioning of prospective jurors in a civil trial and counsel’s ability to conduct thorough and meaningful voir dire can be achieved.36
As such, a brief submitted before trial is an effective way to outline the amendments and applicable principles. The brief can cite amended Section 225.5 and outline the issues in the case requiring the estimated time for voir dire. The brief can request that a mini-opening statement be allowed, as well as the use of jury questionnaires.
The Judicial Council publishes form questionnaires, which can be used in certain civil cases and also can be attached to the brief. Counsel should be prepared to discuss these issues with the court before
1 BLACK’S LAW DICTIONARY (10th ed. 2014).
2 People v. King 195 Cal. App. 3d 923, 932-933(1987).
3 A.B. 1403, Sen. Jud. Comm. (2011-12 Reg. Sess.), as amended Sept. 2, 2011, [hereinafter A.B. 1403] (“This amended version is the consensus result of a working group of plaintiff attorneys, defense attorneys, and judges….The new amendments clarify that trial courts cannot impose blanket, across-the-board time limits to voir dire an entire jury panel.”).
5 CODE CIV. PROC. §225.5.
6 Lombardi v. California St. Cable R. Co., 124 Cal.311, 317 (1899).
7 In re Hitchings, 6 Cal. 4th 97, 110 (1993) (citation omitted).
8 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984).
9 CAL. CONST. art. I, §16.
10 CODE CIV. PROC. §225(b)(1)(C).
11 People v. Richardson, 138 Cal. App. 404, 408-409 (1934).
12 CODE CIV. PROC. §222.5; Bly-Magee v. Budget Rent-a-Car Corp., 24 Cal. App. 4th 318, 324 (1994).
13 Bly-Magee, 24 Cal. App. at 324.
14 People v. Williams, 29 Cal. 3d 392, 406-408 (1981).
15 CODE CIV. PROC. §225.
16 CAL. R. OF CT. 3.1540.
17 STANDARDS RELATING TO EXAMINATION OF PROSPECTIVE JURORS IN CIVIL CASES §3.25.
20 CODE CIV. PROC. §222.5.
21 A.B. 1403, supra note 3 (“Not only is voir dire of two minutes or less per prospective juror inadequate to uncover potential bias, it is difficult, if not impossible, to preserve a record on appeal that a juror concealed bias.”).
22 Tapia v. Barker 160 Cal. App. 3d 761, 765 (1984).
23 CODE CIV. PROC. §657.
24 A.B. 3820 (Brown, ch.1232, Stat. 1990).
26 S.B. 658 (2017-18 Reg. Sess.), Sen. Rules Com., as amended May 9, 2017 [hereinafter S.B. 658, May 9]
27 S.B. 658 (2017-18 Reg. Sess.), Sen. Jud. Comm, April 24, 2017.
28 S.B. 658, May 9, supra note 25.
29 CODE CIV. PROC. §222.5.
30 STANDARDS RELATING TO EXAMINATION OF PROSPECTIVE JURORS IN CIVIL CASES §3.25(c).
31 People v. Williams 29 Cal. 3d 392, 410 (1981).
32 Id. at 410 n.14.
33 Id. at 398.
34 People v. Elliott 53 Cal. 4th 535, 559 (2012) (“The trial court correctly informed the jury about the rules governing circumstantial evidence and correctly informed the jury about the governing standard of proof beyond a reasonable doubt.”).
35WEGNER, ET AL., CAL. PRAC. GUIDE CIVIL TRIALS AND EVIDENCE, §5:312 (2017). (“For example, in a case involving a $1 million damage claim, plaintiffs’ counsel may ask:– “Assuming liability is established in this case, would you be able to return a verdict for $1 million?”– “Would you require a higher standard of proof on liability in order to return such a verdict?”).
36 S.B. 658 (2017-18 Reg. Sess.), Sen. Jud. Comm., Unfinished Bus., as amended Aug. 22, 2017.
Los Angeles Lawyer March 2018
Originally published in Supplement to the Los Angeles Lawyer, March 2018
— Arash Homampour & Scott Boyer
Image Credit: Flickr