Can You Get an Impartial Jury in the Age of Tort Reform?

To ensure a fair and impartial jury, most jurisdictions permit voir dire of prospective jurors. During voir dire, jurors are asked questions that allow the court and parties to determine whether a juror may be biased. In many states, attorneys ask jurors questions during voir dire. In some states, however, the court asks jurors questions, frequently with the parties' input. During the process, the questions are often general and benign. In a typical malpractice case, for example, jurors are asked about their education and employment, their experience with the health-care professions, and their knowledge of and experience with the medical condition involved in the particular case. Those questions rarely meet with opposition.

In recent years, however, plaintiffs in medical malpractice cases have sought to ask jurors about their attitudes regarding “tort reform” and the so-called “medical malpractice crisis.” These efforts have increased as those issues have moved to the political front burner, receiving considerable media coverage. Only a few courts have considered the validity of such questions, but of those that have, plaintiffs generally have been permitted to inquire as to a potential juror's views on those issues, though some courts have limited the line of questioning.