By Colleen Quinn
STATE HOUSE NEWS SERVICE
STATE HOUSE — Plaintiffs in civil cases would be able to specify an amount for damages, and their attorneys would be able to ask questions directly of potential jurors, under legislative changes to the state’s judicial procedures that have now cleared the House and Senate.
The changes to civil lawsuits would bring Massachusetts in line with 39 states that allow plaintiffs to value damages, including pain and suffering, according to proponents of legislation (H 4123/S 2296) that passed in the Senate Tuesday after winning approval in the House of Representatives in June.
Rep. Christopher Markey, a Democrat from Dartmouth, said lawyers have been asking for the changes for several years. After the bill passed in the House, Markey described the legislation as fair changes that over time will lead to more consistent decisions for damages in civil cases.
Currently, plaintiffs in civil lawsuits in Massachusetts cannot specify an amount for damages, and only judges can ask questions of potential jurors during jury selection. Markey said other states allow attorneys to be involved in the “voir dire” process, where prospective jurors are asked about their backgrounds and potential biases before being chosen to sit on a jury.
The legislation will allow attorneys in civil cases the opportunity to ask certain questions so they can “size up potential jurors,” Markey said.
Sen. Stanley Rosenberg (D-Amherst), who steered the bill through the Senate, said the intent is to create a situation where attorneys and judges can question prospective jurors to weed out any prejudices they might hold in a case.
“It will help ensure we pick good juries so that we have fair trials,” he said during brief floor remarks Tuesday before the Senate passed the bill on a voice vote.
Massachusetts has been slow to adopt changes to judicial procedures, according to Markey, who previously worked as a prosecutor and is now in private practice.
The changes were pushed by the bar associations in the state.
Martin Healy, chief legal counsel for the Massachusetts Bar Association, told the News Service in June the association is surprised the state’s Superior Courts have not already adopted rules for attorney-conducted voir dire procedures. Thirty-nine states, including Connecticut, Rhode Island, Vermont and New York, allow parties in a lawsuit a more liberal voir dire process, according to Healy.
“The vast majority of states permit it,” he said. “It is designed to give someone a fair chance.”
The proposed changes would give judges control of the case by allowing them to set parameters for questioning jurors.
Healy said Massachusetts’ juries have historically been reluctant to award plaintiffs substantial amounts of money in civil cases, particularly in personal injury suits. A 1999 study conducted by the U.S. Department of Justice that looked at the 45 largest counties in the country found jury verdicts in Essex, Suffolk, Worcester, Middlesex and Norfolk counties in Massachusetts were markedly skewed in favor of defendants in civil cases, according to Healey.
“The public has become jaded and perceives some personal injury plaintiffs as not being genuine,” Healy said. The changes would “weed out” jurors with that mindset, he said.
In arguing for specific damages, plaintiffs will need to prove the dollar amount and juries will have a guidepost to award damages, Healy said.
“Right now jurors are left to kind of guess what they should award a particular person for an injury,” he said. “Sometimes the jury will come back with an award that has no basis in finding.”
It is not uncommon for judges to reduce the amount awarded by a jury, he said.