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Judge’s Failure to Ask Any Open-Ended Questions in Voir Dire Merited Reversal of No Cause Verdict

By on July 25, 2014 in Blog with 0 Comments

Back in May 2007, the New Jersey Administrative Office of the Courts (“AOC”) issued a directive (Directive #4-07) to all trial court judges that required that some open-ended questions be asked of jurors during the voir dire process. In New Jersey, only the judges can question prospective jurors. The purpose of this directive was to ensure that jurors verbalize their answers so that the court, the attorneys, and the litigants can better assess their attitudes and any possible bias or prejudice, which is not evident from a yes or no answer. In Erga v. Chalmers, 2014 N.J. Super. Unpub. LEXIS 1730 (App. Div. July 16, 2014 ), a no cause jury verdict was reversed because the judge failed to ask any open ended questions during the voir dire process.

Erga involved an expedited jury trial arising out of a motor vehicle accident. The plaintiff’s counsel requested that sample question no. 6 from the directive be posed to the jury. This question inquired: “Do you believe that you will make a good juror for this case? Please explain.”

The judge refused to ask the question as it was suggested by the AOC because he was apparently concerned as to the length of the jurors’ answers and how that would impact the time to complete juror selection. Instead, he asked it the reverse: “if there’s some reason why they feel they can’t be a good juror.” The plaintiff’s counsel objected because, by asking the question in the negative, no one would say no and it would not serve its purpose of having the jurors respond with at least a several sentence answer.

The jury returned a no cause verdict and the plaintiff filed this appeal. The defendant argued that the plaintiff must come forward with some evidence that the process employed was biased or unfair before a reversal was merited. However, the Appellate Division found that the court’s refusal to ask any open-ended questions, as mandated under this directive, was presumptively unfair and warranted a reversal.

The court pointed out that this was not a situation where the court asked some open-ended questions but phrased them differently than the AOC sample questions. The phraseology of the open ended-ended questions was to be left to the discretion of the trial court. However, what is not discretionary was the failure to ask any open-ended questions. Thus, the Appellate Division vacated the judgment entered in favor of the defendant and remanded the case back to the trial court for a new trial with jury selection to comply with Directive #4-07.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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