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           In recent years, litigation has been criticized as too often being a battle between attorneys at the expense of achieving a true and accurate verdict.  In an attempt to change that perception, courts have adopted several new approaches to the role of the jury and the evidence the jury may hear.


            For many years, juries would hear evidence presented by the witnesses called by the lawyers.  Obviously, the judge and the jury are not allowed to call witnesses to fill in gaps they may have about the facts in the case.  Now, however courts in the Commonwealth have become more lenient in providing mechanisms for the jurors to participate in the trial. 


            The most obvious changes have been the way jurors are selected and the jurors' right to ask questions of witnesses.  In Massachusetts civil cases, lawyers have not asked jurors questions directly about their attitude toward a case.  Rather, the lawyers would request that the judge ask a series of questions such as, "Do you have such opinions about medical malpractice allegations that you could not render a fair and impartial verdict for the patient or the physician?".  If a prospective juror answered the question in the affirmative, she or he would either be discharged from jury service, or asked a few more questions by the judge.  Now, courts are increasingly amenable to lawyers directly questioning jurors about their opinions and knowledge of the issues to be tried.  This will theoretically allow the parties to become more aware of the jurors' true outlook and provide for the selection of jurors that are best able to objectively serve.  This would also familiarize the attorney with the jurors who he will ultimately be presenting evidence to.  As the trial proceeds, this may allow the trained litigator to ask certain questions that will be well received by a particular juror.  This should then allow for a fuller appreciation of the issues in the case by particular jurors.  This is still only practiced in a minority of courtrooms.


            A second approach to provide for greater juror participation is allowing jurors to ask questions after both attorneys have completed their questioning of a witness.  For example, the attorney for the patient in a medical malpractice action calls his client as his first witness.  The witness testifies on both direct and cross examination.  On cross examination, the witness testifies that he in fact did sign the informed consent form in the medical record.  However on redirect exam, he claims he did not have sufficient information to make a truly informed decision.  Both the plaintiff and defense attorney make a strategic decision not to pursue this line of questioning.  The plaintiff attorney because he believes that the jury will be convinced that his client simply would not be able to remember all the details of treatment.  The Defense attorney does not pursue this line of questioning because he knows his physician client will testify convincingly about the detailed explanation he gives to all his patients.  However, a juror is not satisfied, and therefore, passes a written question to the judge inquiring what exactly was the patient's understanding when he signed the consent.  The judge first asks the lawyers if they have any objection to the witness being asked the question.  This is a difficult situation because neither side wants to appear to be holding information from the jury.  Therefore, they both agree and the judge reads the question to the witness who then answers the jurors' questions.  Prior to this practice, the jury generally would not have this opportunity to have this issue resolved in such a direct manner.  The lawyers are benefited because they often gain some insight into where the juror's interests would be, at least at that particular point in the trial.  They can then tailor their future evidence to satisfy the jurors' curiosity.


            Finally, courts have begun to significantly limit what qualifies as expert testimony.  For years there has been concern expressed that persuasive experts were being allowed to present opinions that simply were not supported by medical evidence. A superior judge recently wrote that: 


            "A party offering scientific testimony beyond the basic understanding of a lay jury, must provide expert testimony that establishes the theory's validity.  In understanding medical causation is "beyond the . . . knowledge of the ordinary layman . . . then proof of it must rest upon expert medical testimony."  In these types of cases, the judge plays a "gatekeeper role" in determining whether the process or theory underlying a scientific expert's opinion lacks reliability.  The judge's role is critical in preventing confusion among the lay jury, especially when presented with complex and conflicting theories.  The judge engages in a preliminary assessment of the scientific truth and the applicability of the methodology to the facts at issue.


            If the judge finds that the theory underlying the expert's opinion is unreliable, "that opinion should not reach the trier of fact."  The purpose of the tests is to prevent experts from giving testimony that is not based on reliable methodology.  Personal experiences or observations are admissible only if the proponent can "show that the method of personal observation is either generally accepted by the relevant scientific community or otherwise reliable to support scientific conclusions relevant to the case."


            In that particular case, the plaintiff alleged that if a mother in premature labor had been given a series of antenatal steroid treatment, the child would not have been born with premature lungs nor suffered from the cerebral palsy they were now diagnosed with.  The judge held an evidentiary hearing without the jury to elicit the medical foundation for the doctor's defense.  After the hearing, the court determined that there was no reliable scientific support for the expert's opinion as to causation. "The reliable scientific studies, that is those conducted using randomized, double-blind, control groups, clearly demonstrate that there is no scientific basis for concluding that the failure to provide additional weekly doses of antenatal steroids and other tocolytic agents caused injury to the plaintiffs."


            These new innovations for courtroom practice will likely result in more public confidence in litigation as a process to find the truth.  Such an improvement in the public’s perception of litigation is probably necessary if it is to continue to be accepted as society’s primary method to resolve disputes between Americans in this century.

Jurors' Right to Ask Questions of Witnesses

by Attorney Frank E. Reardon

April 2003

Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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