House Bill 4123 makes two changes to Massachusetts Superior Court procedure, both of which favor plaintiffs.  The first, addressed by Section 1 of the bill, allows plaintiffs’ attorneys to request a specific monetary amount of damages at trial.  The second, addressed by Section 2 of the bill, allows attorneys to conduct voir dire.

 

The Language of the Bill

Section 1 of the bill states that “[i]n civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.”

 

Section 2 of the bill requires the court, upon the request of any party or any party’s attorney, to permit “the party or the party’s attorney to conduct, under the direction of the court, an oral examination of the jury venire.”  This examination is not unlimited, however.  Instead, “[t]he court may impose reasonable limitations upon the questions allowed during such examination.”  The court may provide additional time to the parties at its discretion.

 

Examination by a party or a party’s counsel does not replace voir dire conducted by the court.  Instead, such examination is “[i]n addition to whatever jury voir dire of the jury venire [that] is conducted by the court.”  Also, the bill does “not limit the number of peremptory challenges a party is entitled to by statute or court rule.”

 

Massachusetts’s Jury Trial Statistics

 

In a 2005 study, the Department of Justice analyzed plaintiff success rates in the United States’ seventy-five most populous counties.  Four Massachusetts counties were included in this study: Essex, Middlesex, Suffolk, and Worcester.  The study revealed that plaintiffs prevailed approximately 53.2 percent of the time nationwide.  However, in the four Massachusetts counties, plaintiffs prevailed in only 79 of the 321 jury trials, for a success rate of approximately 24.6 percent.

 

Potential Impact of the Bill

 

The Massachusetts Academy of Trial Attorneys, an organization of Massachusetts plaintiffs’ attorneys, believes that the implementation of House Bill 4123 will make Massachusetts a more plaintiff-friendly jurisdiction.  After the governor signed the bill into law, the Academy’s president posted a letter to the group’s website calling the bill “a cultural shift in Massachusetts.”  The letter further stated that “the ability to state a dollar amount at trial is also a huge advance” for plaintiffs’ attorneys.

 

If the Academy is correct, House Bill 4123 could make Massachusetts a particularly problematic jurisdiction for toxic tort and products liability defendants.  According to the Department of Justice’s 2005 study of nationwide trial statistics, plaintiffs prevailed in jury trials less than half as frequently in Massachusetts as they do throughout the country.  If plaintiffs in Massachusetts jury trial begin winning more often because House Bill 4123 (1) gives their attorneys a better chance to influence the jury through attorney-conducted voir dire and (2) strengthens their attorneys’ presentation to the jury by authorizing them to request a specific amount of monetary damages, then Massachusetts could become an appealing jurisdiction for plaintiffs, and plaintiffs’ attorney might be emboldened to push cases to the jury that they previously would have settled.