The Benefits of Unlimited Voir Dire—Restraint Is Required

In many states, including California Code of Civil Procedure section 222.5, the use of“specific or arbitrary time limits” on voir dire is prohibited Encouraged instead is liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. The fact that a topic has been included in the judge’s examination should not preclude additional nonrepetitive or non-duplicative questioning in the same area by counsel. By eliminating arbitrary time limits (“you have 30 minutes with the first 18 jurors”) it allows each party to encapsulate their case into a brief statement, and allow the venire to digest each case and voice any concerns, biases, or prejudices at the outset of the voir dire process and encourages follow up on what was just said. While the Court may set reasonable parameters, parties still have the right to fully examine the venire to make intelligent use of peremptory challenges and challenges for cause.

This is simply good policy and is not limited to California.  Many states have adopted some version of the above and, if your state has not, you should push for this policy change.

In addition to expressing a preference for mini-openings, the California Legislature amended Code of Civil Procedure section 222.5 to rectify the problems posed by artificial time limits and inability to get complete juror information in voir dire.  (See Assem. Bill No. 1403 (2011-2012 Reg. Sess.) § 1 [“The bill would prohibit the trial judge from establishing a blanket policy of a time limit for voir dire, and would provide that the parties should be given reasonable time limits [instead] . . . .”].) Code of Civil Procedure section 222.5 specifically provides that “[s]pecific unreasonable or arbitrary time limits shall not be imposed in any case” and that the court “shall not establish a blanket policy of a time limit for voir dire.”  And the rationale makes sense.  Parties need enough time to examine prospective jurors in order to “intelligently exercise” their peremptory challenges and challenges for cause, and courts should permit “liberal and probing examination” calculated to discover bias or prejudice.  (Code Civ. Proc., § 222.5, emphasis added.)

Both liberal and probing examination and intelligent use of challenges inherently requires a cohesive process: the Court may impose reasonable time limits for voir dire based on the particulars of the case before it, but allow counsel flexibility in examining the venire to discover bias or prejudice.  This will allow for a more efficient and productive voir dire process, and promote the purpose of jury selection: to find and select impartial members of the community in the fairest way possible to hear and decide the parties’ dispute.

It is important to emphasize, however, that “unlimited” time with the jury does not mean that you or a trusted personal injury lawyer Newport Beach CA trusts should prattle on.  The jury is the audience.  There is absolutely such a thing as too-much of a good thing. You are there to spark discussion and to get the jurors talking about their feelings, biases, and prejudices.  You are not there to talk about you, to impress the jurors with your legal knowledge, or to secure a juror’s commitment to vote a certain way.  Not only does this not work, it is always counterproductive and will backfire. You will look untrustworthy and authoritarian.  Emphasize to the judge and to the jury that you respect their time as you would your own. If the case is truly non-controversial, keep it brief, even though you have requested and been granted “unlimited time.”  The trial judge will view you as the reasonable side and future requests will be much more likely to be granted if you demonstrate that you are efficiently seeking full justice. Every word must matter. Be a good shepherd of the juror’s time, while finding out who is and who is not right for the specific case.

Bruno NaluThanks to our friends and contributors from Bruno Nalu for their insight into benefits of unlimited voir dire.