Trial judges have discretion to determine the length of time given for jury selection. However, there are limits to the time limits that can be imposed by a trial judge. At the last pre-trial conference, make sure you ask whether the trial judge will impose time limits for jury selection.
If the trial judge has a time limit for jury selection, gently remind her that the courts must grant the parties “a reasonable time period” for jury selection. If the trial judge tells you to take a hike, give the trial judge a memo of law that recites the law of jury selection. The trial judge will know that you know your stuff and there are limits to what she can impose for time limits.
The Best Case in Your Arsenal
The leading case in New York is Zgrodek v. McInerney, 61 A.D.3d 1106, 876 N.Y.S.2d 227 (3rd Dep’t 2009), where the trial judge only allowed 15 minutes per round of questioning during jury selection. In Zgrodek, the Appellate Division, Third Department, set aside the verdict of the lower court and found that the court’s allowance of only 15 minutes per round of voir dire questioning of the jury inadequate was a matter of law.
Citing a publication on voir dire on the courts’ website, the court in Zgrodek stated that “a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire”. The court declared that “[w]hile the trial court is accorded discretion in setting time limits for voir dire”, the 15 minutes per round allowed here was insufficient, mandating a new trial for all damages issues. Zgrodek v. McInerney, 61 A.D.3d 1106, 876 N.Y.S.2d 227 (3rd Dep’t 2009).
The court in Zgrodek held that:
“We find merit in plaintiffs’ argument that Supreme Court placed unduly restrictive time constraints on the questioning of prospective jurors…the 15 minute allowed for each round under the circumstances of this case was unreasonably short.”
Citing, “Implementing New York’s Civil Voir Dire Law and Rules”, http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf [New York State Unified Court System, January 2009, accessed February 25, 2009] at 6 [stating that “[i]n a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire”])(Emphasis Added).
“We cannot conclude from this record that plaintiffs were not prejudiced by the extremely short time permitted for voir dire.”
Id. at 228 (Emphasis Added).
The court in Zgrodek referred to the “extremely short time permitted for voir dire” as an “error in voir dire” and ordered a new trial on all issues. Id. at 299.
Fighting Back When Pressed for Time
The court’s dicta in Zgrodek is valuable when you’re confronted with a trial judge attempting to impose time limits on jury selection. And remember, this fantastic Third Department case is controlling law throughout New York since there are no inconsistent decisions in other departments.
Significantly, the “two or three hours” is not the time limit for completing voir dire, but rather the reasonable time period to “report on the progress of voir dire”. By implication, the time period to complete jury selection should be longer than the “two or three hours of actual voir dire”.
If the judge tries to limit your time for jury selection, remind her that the two or three hour period refers to “actual voir dire” and should not include the time spent meeting with the Judge, waiting for jury selection to begin, or lunch or bathroom breaks.
Have your paralegal keep track of the actual time you spend in “actual voir dire” and remind the judge that you only spent 52 minutes in actual voir dire, even though you are still in the first round of jury selection in the middle of the afternoon.
Your Last Resort…Just in Case
If the trial judge is not convinced, gently remind her that the court in Zgrodek overturned a jury verdict based on the inadequacy of time allowed for jury selection. When confronted with the law and a strong memo of law, the trial judge will be hard-pressed to cut short your questioning during jury selection.
But if the trial judge still disagrees, MAKE A RECORD. Plaintiffs’ lawyer, John G. Rusk, Esq., did an excellent job of making a record regarding the inadequacy of time allowed for jury selection in Zgrodek, and established the basis for the appellate court’s reversal of the trial court’s Judgment.