MEMORANDUM IN OPPOSITION

A.8964-B (Weinstein) – Assembly Judiciary

An Act to remove judicial discretion regarding the selection of jurors in civil cases

On behalf of NYTortReformNow.org, a broad based coalition of businesses, professionals, municipalities, not-for-profits and concerned citizens, I am writing in STRONG OPPOSITION to the above referenced bill.

This bill seeks to remove all judicial discretion from the jury selection process and mandate a single selection method for all civil cases throughout the state.  It does so in a manner that will disadvantage the defense bar (e.g., with respect to allowing plaintiff attorneys to mention damages even in bifurcated trials where a jury is focus solely upon the question of liability and not charged with determining the issue of damages) and virtually guarantees that jury selection will take longer than ever. 

If enacted, the legislation will create a new right of immediate appellate review of rulings made during the voir dire process.  Further, the bill provides for a minimum two full days devoted to jury selection before the court is permitted to impose reasonable time restrictions upon the parties, even if the economics of the case simply do not justify a protracted jury selection process. The present system, giving the judge control over the time frame for jury selection, which can be tailored to the particulars of each case, is certainly preferable to a one size fits all approach. Jurors have lives. It is beyond dispute that the litigants are entitled to a fair and impartial trial.  However, in order for our system of justice to work it is important to assure that the time imposition upon jurors not exceeds what is genuinely needed. 

The legislation provides that any expression of “bias” by a prospective juror permits a challenge for cause despite assurances from the juror that he or she can fairly decide the case.  If adopted this provision will result in the needless dismissal of fair-minded jurors and further delay the selection process.  The fact that a prospective juror can openly and honestly identify a “bias” should not constitute per se grounds for dismissal, provided the juror gives assurances of fairness.  (Short men, who may be biased against tall men, can and do decide cases fairly based solely upon the evidence, notwithstanding the fact that the plaintiff or defendant is tall.)  It is not hard to image that if this new basis for challenges for cause is adopted, jury composition will be skewed toward jurors unable or unwilling to identify their “biases”, or jurors less than honest with themselves or others. It will also give a quick and effective exit to anyone (including all working men and women whose bosses do not pay them while on jury duty) who’d prefer not to serve. 

Finally, this bill would require an attorney exercising a preemptory challenge with respect to any one member of a protected class (without showing of pattern) to furnish a neutral explanation for his action.  The supposition that the use of a preemptory challenge with respect to a single member of a protected class is predicated upon a likelihood of invidious discrimination is both offensive and possibly unconstitutional. 

In eliminating all of the jury duty exemptions previously afforded a litany of special interest groups a decade ago New York took a giant step toward helping to insure fairness in our civil jury pools.  This bill would dramatically undermine that progress.

For all of the foregoing reasons it is urged that this bill be held.

Respectfully,

Mark C. Kriss
Executive Director
NYTortReformNow.org