Four New York courts to test civil voir dire changes.

New York state will begin experiments in four courts this month to test proposed changes in voir dire procedures in civil cases.

Judges participating in the pilot programs will use and evaluate

* mandatory settlement conferences before voir dire,

* three levels of judicial supervision during voir dire,

* designated and undesignated alternate jurors,

* time limits on questioning by attorneys, and

* three different methods of jury selection.

The pilot programs, each to run from January to May 1995, will test some of the measures recommended in Chief Judge Judith Kaye's recently announced package of court policy changes and legislative proposals. (See Gary Spencer, Far-Ranging Jury System Changes Adopted, N.Y.L.J., Oct. 25, 1994, at 1.)

That package included some reference to nearly all 80 recommendations made by the ambitious Jury Project report issued last spring by a 30-member commission that studied New York's jury system. (See Civil Voir Dire Attacked in New York Jury Report, TRIAL, June 1994, at 96.)

Some recommendations will be executed directly by the court in new administrative policies, some will require new legislation, and some will be tested in pilot programs. Not mentioned at all in Kaye's final package was a proposed $1,000 voir dire fee that was opposed by Stephan Peskin, immediate past president of the New York State Trial Lawyers Association.

In a statement made when announcing the policy changes, Chief Administrative Judge E. Leo Milonas said the reform program had three primary objectives: "creating a jury system that operates efficiently and effectively, enlarging the jury pools to include all who are qualified, and making jury service a positive experience for citizens."

Many of the changes deal with using jurors more efficiently and removing procedures that jurors irritating. For example, the court will stop using "permanent qualified lists" of jurors that result in the same jurors being called as soon as they are again eligible. In addition, the court will work toward limting jury service to one day or one trial, and will ask the legislature to increase daily compensation from $15 to $40 and to abolish occupational exemptions for all but judges. The court also will use unemployment and welfare rolls to expand diversity among prospective jurors.

New legislation will be required to reduce the number of peremptory challenges allowed in criminal cases by roughly one-third, to eliminate mandatory sequestering of jurors in criminal cases, and to encourage settlements in civil cases by awarding prejudgment interest against defendants who lose at trial after rejecting a compromise.

The pilot programs will test various ways of selecting jurors as well as voir dire changes. Civil voir dire was singled out for criticism in the Jury Project report. Attorney Colleen McMahon, chair of the commission that produced the report, accused attorneys of using voir dire as "a settlement tool" and noted that over 40 percent of civil cases that went to voir dire were settled before trial began. Jurors who were called for those cases are unavailable to serve again for at least two years.

The voir dire changes will be tested in urban, suburban, and rural areas. Courts involved are in Manhattan, Nassau County, Erie County, and the Fourth Judicial District stretching from Schenectady to the Canadian border. Data will simultaneously be collected throughout the state to establish baseline information for assessing the tests.

Richard Gurfein, president-elect of the New York State Trial Lawyers Association, said that some of the procedures being tested may run contrary to other administrative measures that emphasize efficient use of a trial judge's time. For example, "If the judge is going to oversee the entire voir dire process from start to finish, that could create judicial gridlock in heavy caseload counties," Gurfein said.

Also, settlement conferences during the pilot programs will be held before trial judges, not before trial assignment judges as they now are. That could make them more effective, but presiding over settlement conferences is yet another drain on the judges' time, said Gurfein.

Some of the measures being tested seem logically to require legislative support that has not yet been voted, he said. For example, mandatory settlement conferences would almost certainly be more effective with prejudgment interest in place. Judge Kaye has proposed legislation to change sections 3221 and 5001 of the state's Civil Practice Law & Rules to allow interest to accumulate starting one year after commencement of a legal action.

"Prejudgment interest will go a long way to getting more expeditious settlements," said Gurfein. "If the defendant was not benefiting from holding onto the money, you would get settlements earlier."

"Some of the changes in New York's jury system are state-of-the-art and others are state-of-the-nation," said G. Thomas Munsterman, director of the Center for Jury Studies at the National Center for State Courts. He said many of the proposed rules are already common in other states. (Jan Hoffman, New York's Top Judge Plans an Overhaul of Juror System, N.Y. Times, Oct. 25, 1994, at A1.)

The state legislature has previously rejected bills to eliminate mandatory sequestering and occupational exemptions, so the fate of proposed legislative changes remains uncertain. The pilot programs will be evaluated with reference to statewide baselines and, if improvements are significant, new proposals for change will follow.