Working the jury list: Time available for jury research in Virginia bumped to five days
PrintA funny thing happened in the General Assembly to a "modest" bill dealing with the amount of time lawyers have to do research on prospective jurors.
A bill was introduced to expand the time for getting a jury list from 48 hours before trial to two days before. By the time it passed both houses and landed on the governor's desk, two days became five days.
If Gov. Bob McDonnell signs it, lawyers who so desire will have a full business week to dig into a juror's past by conducting interviews, doing Internet research, plowing through Facebook posts and the like.
Obviously, not every case will require that level of thoroughness. But in big cases with big bucks on the line, every opportunity to gather facts that indicate a juror's biases, prejudices and predispositions is useful to both plaintiff's and defense attorneys. And three more days could make a huge difference.
A question of fairness
Currently Virginia Code § 8.01-353 provides that attorneys get the list of prospective jurors at least 48 hours before their trials.
In other words, the jury officer can hand the attorneys the juror list Friday afternoon for a trial on Monday.
That hardly seemed fair to a committee of the Boyd-Graves Conference assigned to study the state's procedures for selecting and impaneling jurors.
It recommended, and the full conference endorsed, amending the law to provide for notice at least two business days before trial.
Sen. Mark D. Obenshain, R-Harrisonburg, a member of the conference who often sponsors bills to carry out its recommendations for improving civil procedure in the state, was willing to do so.
"I'd had a similar experience myself," he said, with a five-day trial scheduled to start on a Monday in a jurisdiction where he did not practice regularly. He said he was fortunate in being able to persuade the clerk's office to give him the juror list a bit earlier.
His Senate Bill 382 cleared the Senate on unanimous votes at every step and went to the House Courts of Justice civil law subcommittee.
Its chairman, Del. Clay Athey, R-Front Royal, asked, why stop at two days?
Athey said last week, "Part of the art of practicing law is understanding who your audience is. ...Giving you a chance to think that through is an extremely important matter before voir dire. "
With little discussion, the notice period was bumped up to five business days and went on to clear the legislature without a dissenting vote at any point.
Sgt. Pam Williams, the member of the Richmond sheriff's office responsible for coordinating jurors in the city, said she was caught off guard when she learned of the change. "It's going to create major problems for us," she said.
John Frey, the circuit court clerk in Fairfax, said the proposal could result in the need for more jurors if attorneys routinely ask for five days' notice. Under the law, attorneys have to ask for the lists to get them.
Frey said the practice in Fairfax is to schedule most jury trials at 10 a.m. and a few later in the day. That way, jurors stricken for the earlier cases can be reassembled and assigned to the later trials.
When an attorney asks for a juror list, a panel has to be assigned for each trial, some of which inevitably settle on the courthouse steps, he said. That could result in a substantial increase in the cost of providing jurors, Frey said.
If sheriffs or clerks of circuit court were worried about an added burden, they didn't convey those apprehensions to Obenshain or other legislators.
He said he talked to a handful of clerks and saw lobbyists for the sheriffs and clerks daily.
"I never heard from a single sheriff or clerk," Obenshain said, "and they're not usually reticent about sharing their concerns. "
Chip Dicks, a lobbyist for the Virginia Court Clerks Association, said the clerks acknowledged that the current law "didn't seem to be a fair opportunity for the attorneys to prepare. "
And as for extending the notice time after the original bill was filed, "two days or five days doesn't make a lot of difference to us. "
Clerks are wary, however, of other possible changes in the juror selection process. For example, the current law requires those gathering juror information to pass along only the name, age, address, occupation and employer of each juror.
Some members of the Boyd-Graves committee would like to see more information, such as the identity and employment of a spouse.
And there was some interest on the committee in a broader look at making the system more cohesive and consistent statewide.
Dicks acknowledged that the situation statewide is a mishmash, with no law specifying how prospective jurors are selected, notified and seated. As an example, Code § 8.01-353, leaves the tasks to "the clerk or sheriff or other officer responsible" without suggesting just who should be responsible.
The result is that the chore falls to a jury officer in a sheriff's office in one jurisdiction, a deputy clerk of court in another, or a judge's secretary or court administrator in yet another locality.
Obenshain said he is aware of those concerns but wanted to keep this year's legislation simple, so as not "to endanger the modest purpose of this bill. "
Modest but important, said Matt Murray, the Charlottesville who attorney who is the incoming president of the Virginia Trial Lawyers Association.
Trial attorneys "can learn a great deal, especially in today's Internet climate," with its blog postings and responses and Facebook and other social media.
But he acknowledged that the remedy if the law is not complied with is not one that many attorneys are willing to accept.
"I don't know of any lawyer who's given up a trial date" to get better information about the prospective jurors on his panel, he said. "Trial dates are too precious. "
