Justice Conboy on Three Ways NH Civil Attorneys Can Preserve Their Clients’ Right to Trial by Jury


Justice Carol Ann Conboy accepted the Civil Justice Award at the New Hampshire Association for Justice (NHAJ) Dinner on June 6, 2017.

The award recognized Justice Conboy for her commitment to “promot[ing] the administration of justice for the public good ... uphold[ing] the honor and dignity of the profession of law .... uphold[ing] the right of trial by jury ... preserv[ing] and enhanc[ing] the rights of persons to have access to the Court and our system of justice ... and to afford[ing] everyone a full, fair and timely remedy for wrongs done.”

In her acceptance speech, Justice Conboy shared three ways New Hampshire attorneys can preserve their client’s right to trial by jury in civil cases:

1. Allow Attorney-Conducted Panel Voir Dire

Encourage the court to allow attorney-conducted panel voir dire as provided in RSA 500-A:12-a, II. Justice Conboy referenced her special concurrence in Dukette v. Brazas, 166 N.H. 252 (2014) (argued by Upton & Hatfield, LLP Partner Michael McGrath) in which she wrote:

“the effectiveness of ... questioning of the jury panel as a whole—open voir dire—simply cannot be duplicated by individual voir dire at the bench. Further, given the time constraints that generally characterize jury selection, it is unlikely that counsel would be able to explore with each juror, privately at the bench, the questions that would otherwise be asked of the entire panel. In my judgment, open voir dire better accomplishes the legislature's stated purpose of allowing counsel ‘liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.”

Justice Conboy urged trial attorneys not to cover their eyes and ears and “hear no evil, see no evil” when it comes to juror biases that could be illuminated by examination of prospective jurors allowed by New Hampshire law.

2. Allow Juror Questions During Trial

Use the procedure established by NH Civil Rule 38(d) which permits a judge to allow juror questions during trial. Jurors are smart. They want to make the right decision. Rule 38 (d) allows jurors to request the information they need.

3. Request That Judges Thoroughly Instruct Prospective Jurors

Finally, she suggested that attorneys should request that judges “instruct the panel of prospective jurors prior to jury selection as to:

(a) The nature and purpose of the selection process.
(b) The nature of the case to be presented.
(c) The specific issues for resolution.
(d) A summary of the law to be used in their consideration of the evidence.
(e) Any controversial aspects of the trial likely to invoke bias.” RSA 500-A:12-a, I.

NHAJ also honored past presidents, including Upton & Hatfield attorneys Gary Richardson, Heather Burns and Michael McGrath.

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