BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1403 (Committee on Judiciary)
As Amended September 2, 2011
Hearing Date: September 7, 2011
Fiscal: No
Urgency: No
RD
PURSUANT TO SENATE RULE 29.10
SUBJECT
Civil Actions
DESCRIPTION
This bill would provide that a trial judge in civil trials
should allow a brief opening statement by counsel for each party
prior to the commencement of the oral questioning phase of the
voir dire process and would prohibit a trial judge from
establishing a blanket policy of a time limit for voir dire. It
would further prohibit the court from arbitrarily or
unreasonably refusing to submit reasonable written
questionnaires and would provide that where a questionnaire is
utilized, the parties should be given reasonable time to
evaluate the responses to the questionnaires before oral
questioning commences. The bill would also specify that the
court in civil trials should provide the parties with both the
alphabetical list and the list of prospective jurors in the
order in which they will be called in order to help facilitate
the jury selection process.
This bill also contains provisions relating to additur and
remitter, and recovery of court interpreter fees by prevailing
parties.
BACKGROUND
In 1990, California enacted AB 3820 (Brown, Ch. 1232, Stats.
1990) adding procedures governing the selection of a fair and
impartial jury in civil jury trials to the Code of Civil
(more)
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Procedure. The enactment of the voir dire provisions contained
in that bill were extremely controversial but were the result of
compromises made by the Judicial Council and representatives of
the State Bar, California Defense Bar and the Trial Lawyers
Association, as noted in the Senate Judiciary Committee
analysis. (See Sen. Judiciary Com. (1989-1990 (Reg. Session)
August 27, 1990, pgs. 2-5.)
Since this bill was last heard in this Committee, stakeholders
(including the plaintiffs and defense bars, as well as the
judiciary) met to discuss current problems with the civil trial
jury voir dire process. As a result of this meeting, consensus
language was reached that would address limitations placed by
judges on parties conducting voir dire while still preserving
judicial discretion in overseeing a fair and impartial voir dire
process.
This bill was amended on September 2, 2011 to include provisions
reflecting that compromise. The remaining provisions of this
bill relating to additur and remittitur, and recovery of court
interpreter fees by prevailing parties were heard and approved
by this Committee on July 5, 2011.
CHANGES TO EXISTING LAW
1. Existing law specifies procedures governing the selection
of a fair and impartial jury in civil jury trials, including
that counsel for each party shall have the right to examine
any of the prospective jurors, as specified, in order to
enable counsel to intelligently exercise both peremptory
challenges and challenges for cause. (Code Civ. Proc. Sec.
222.5.)
Existing law prohibits specific unreasonable or arbitrary time
limits from being imposed and provides that during any
examination conducted by counsel for the parties, the trial
judge should permit liberal and probing examination calculated
to discover bias or prejudice with regard to the circumstances
of the particular case. (Id.)
Existing law provides that a court should not arbitrarily or
unreasonably refuse to submit reasonable written
questionnaires, the contents of which are determined by the
court in its sound discretion, when requested by counsel.
(Id.)
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This bill would provide that the trial judge should allow a
brief opening statement by counsel for each party prior to the
commencement of the oral questioning phase of the voir dire
process.
This bill would prohibit a trial judge from establishing a
blanket policy of a time limit for voir dire. It would
further prohibit the court from arbitrarily or unreasonably
refusing to submit reasonable written questionnaires, the
contents of which are determined by the court in its sound
discretion, when requested by counsel.
This bill would provide that where a questionnaire is
utilized, the parties should be given reasonable time to
evaluate the responses to the questionnaires before oral
questioning commences.
This bill would provide that the judge in civil trials should
provide the parties with both the alphabetical list and the
list of prospective jurors in the order in which they will be
called in order to help facilitate the jury selection process.
2. Existing law provides that in any civil action where after
trial by jury an order granting a new trial limited to the
issue of damages would be proper, the trial court may in its
discretion:
if the ground for granting a new trial is inadequate
damages, make its order granting the new trial subject to
the condition that the motion is denied if the party
against whom the verdict has been rendered consents to an
addition of so much thereto as the court in its independent
judgment determines from the evidence to be fair and
reasonable; or
if the ground for granting a new trial is excessive
damages, make its order granting the new trial subject to
the condition that the motion is denied if the party in
whose favor the verdict has been rendered consents to a
reduction of so much thereof as the court in its
independent judgment determines from the evidence to be
fair and reasonable. (Code Civ. Proc. Sec. 662.5.)
This bill would amend those provisions to provide that in any
civil action where after trial by jury an order granting a new
trial limited to the issue of damages would be proper, the
trial court may in its discretion:
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if the ground for granting a new trial is inadequate
damages, issue a conditional order granting the new trial
unless the party against whom the verdict has been rendered
consents to the addition of damages in an amount the court
in its independent judgment determines from the evidence to
be fair and reasonable; or
if the ground for granting a new trial is excessive
damages, issue a conditional order granting the new trial
unless the party in whose favor the verdict has been
rendered consents to the reduction of so much thereof as
the court in its independent judgment determines form the
evidence to be fair and reasonable.
This bill would provide that if a conditional order does not
set forth the deadline for acceptance or rejection of the
addition or reduction of damages, the deadline is 30 days from
the date the conditional order is served by the clerk of the
court. In addition, the bill provides that failure to respond
to the order as specified shall be deemed a rejection of the
addition or reduction of damages and a new trial limited to
the issue of damages shall be granted automatically
This bill would require that a party filing and serving an
acceptance of a conditionally ordered addition or reduction of
damages to concurrently serve and submit to the court a
proposed amended judgment reflecting the modified judgment
amount, as well as any other uncontested judgment awards.
3. Existing law provides that except as otherwise provided by
statute, a prevailing party is entitled as a matter of right
to recovery costs in any action or proceeding. (Code Civ.
Proc. Sec. 1032(a)(5).)
Existing law enumerates the items allowable as costs under
Section 1032, including:
filing, motion, and jury fees;
juror food and lodging, as specified;
taking, video recording, and transcribing necessary
depositions, as specified;
service of process, as specified;
expenses of attachment including keepers fees;
premiums on necessary surety bonds;
ordinary witness fees, as specified;
court report fees as established by statute;
models and blowups of exhibits and photocopies of
exhibits that may be allowed if they were reasonably
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helpful to aid the trier of fact; and
any other item that is required to be awarded to the
prevailing party pursuant to statute as an incident to
prevailing in the action at trial or on appeal. (Code Civ.
Proc. 1033.5(a).)
This bill would add to the list above court interpreter fees
for a qualified court interpreter authorized by the court for
an indigent person represented by a qualified legal service
project, as specified.
COMMENT
1. Stated need for the bill
According to the author:
The ÝSeptember 2nd] amendments make minor and clarifying
changes to the process by which courts evaluate the fitness of
potential jurors in civil matters. These are largely
declarative of existing practices, although reportedly not
uniformly understood or enforced. The amendments clarify that
each party should be allowed a brief opening statement to the
jurors prior to the commencement of oral questioning, and that
the court may not have a universal policy limiting the time of
voir dire examination. To facilitate the selection process,
parties are to be provided with a list of names organized both
alphabetically and by sequence so that the parties are able to
promptly access the needed juror information and conserve
court time. With respect to juror questionnaires, the bill
clarifies a rule Ýof] reasonableness. The court is not to
arbitrarily or unreasonably refuse to allow reasonable written
questionnaires, and parties should be allowed reasonable
Ýtime] to evaluate the responses prior to oral questioning.
In support of the bill, the Consumer Attorneys of California
(CAOC) writes:
This amended version is the consensus result of a working
group of plaintiff attorneys, defense attorneys, and judges. .
. .The new amendments clarify that trial courts cannot impose
blanket, across-the-board time limits to voir dire an entire
jury panel. Not only is voir dire of two minutes or less per
prospective juror inadequate to uncover potential bias, it is
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difficult, if not impossible, to preserve a record on appeal
that a juror concealed bias. . . . In addition to making sure
there are no blanket restrictions on voir dire, the bill
promotes broader use of mini-openings, which take very little
time but engage jurors by explaining the nature of the case to
make the questioning process more meaningful and efficient.
AB 1403 also sanctions more widespread use of jury
questionnaires, and discourages arbitrary or unreasonable
refusals to utilize questionnaires. Over time, studies
continue to support our belief back in 1990 that jury
questionnaires can better uncover juror bias.
Also in support, the California Defense Counsel writes, "AB 1403
makes incremental, moderate changes to the statutes relating to
voir dire in civil cases. . . . The changes . . . are intended
to make sure that judges allow reasonable time for voir dire,
and not establish arbitrary time limits. The bill also suggests
the use of brief opening statements before the voir dire process
commences, so that prospective jurors have an idea about the
nature of the case."
2. September 2nd amendments
As noted above, this bill was amended on September 2, 2011 to
incorporate consensus language agreed to by stakeholders
regarding the civil trial jury voir dire statute. As amended,
this bill would prohibit the use of blanket time limits on the
voir dire process and would also provide that the trial judge
should allow a brief opening statement by each party prior to
the commencement of the oral questioning phase of the voir dire
process. With the September 2nd amendments, the bill would also
explicitly prohibit courts from arbitrarily or unreasonably
refusing to submit reasonable written questionnaires and would
provide that where a questionnaire is utilized, the parties
should be given reasonable time to evaluate the responses to the
questionnaires before oral questioning commences. Finally, the
bill would provide that the court in civil trials should provide
the parties with both the alphabetical list and the list of
prospective jurors in the order in which they will be called in
order to help facilitate the jury selection process.
a. Voir dire, generally
Both the U.S. and California constitutions guarantee the right
to trial by jury in civil actions, under specified
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circumstances. (See U.S. Const. amend VII; Cal. Const. art.
1, sec. 16. California also provides for the right to trial
by jury in specified circumstances in statute; see Code Civ.
Proc. Sec. 592.) In 1988, California enacted the Trial Jury
Selection and Management Act, which governs the formation of
trial juries for both civil and criminal cases in California
trial courts. (Code Civ. Proc. Sec. 190 et seq.) Voir dire
of prospective jurors in civil matters is governed by Section
222.5 of the California Code of Civil Procedure. As described
in the Background, this section was enacted as part of AB 3820
(Brown, Ch. 1232, Stats. 1990), which was the result of an
extensive compromise among trial lawyers, the defense bar, and
the judiciary.
Voir dire is critical to the selection of a jury of one's
peers, devoid of bias and prejudice. The ability of counsel
to properly conduct voir dire, within permissible paramaters,
is in turn integral to a fair trial and just verdict. Under
Section 222.5 of the Civil Procedure Code, as well as
California Rules of Court, Rule 3.1540(b), the trial judge
begins voir dire with an initial examination to disclose
grounds for excuses for cause. Upon completion of the trial
judge's examination, counsel for both parties has the right to
conduct questioning. This questioning has the purpose of
"enabling counsel to intelligently exercise both preemptory
challenges and challenges for cause." (See also J. Clark
Kelso, Final Report of the Blue Ribbon Commission on Jury
System Improvement (1996) 47 Hastings L.J. 1433, 1476-1477.)
b. Limitations upon counsels' right to conduct voir dire in
the trial judge's sound discretion
Existing law, Code of Civil Procedure Section 222.5,
explicitly provides that each party has the right, in a civil
case, to directly question any of the prospective jurors after
the trial judge's initial voir dire and that the trial judge
should permit liberal and probing examination calculated to
discover bias or prejudice with regard to the circumstances of
a particular case. Also under existing Section 222.5, the
court should not arbitrarily or unreasonably refuse to submit
reasonable written questionnaires designed to reveal
particular attitudes of prospective jurors (such as racial or
gender bias, attitude toward judicial process, etc.) when
requested by counsel. At the same time, however, the trial
judge retains discretion to set reasonable limits on the scope
of additional questions or supplemental examination. (Cal.
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Rules of Ct., Rule 3.1540(c).)
In exercising that "sound discretion as to the form and
subject matter of voir dire questions, the trial judge should
consider, among other criteria, any unique or complex
elements, legal or factual, in the case and the individual
responses or conduct of jurors that may evince attitudes
inconsistent with suitability to serve as a fair and impartial
juror in the particular case." As such, "judges cannot impose
unreasonable or arbitrary time limits." (Code Civ. Proc. Sec.
222.5.)
CAOC, in support, argues that clarification of the above
section is necessary because "enforcement has eroded over
time, and it is now time for the statute to be updated and
modernized." CAOC writes that its members "have reported some
'local, local rules' where there are arbitrary limits of 30
minutes for voir dire in unlimited civil jurisdiction cases.
This goes directly contrary to the original intent of the
statute. Some other individual judges are denying jury
questionnaires, 'rehabilitating' jurors who have already
flatly stated they cannot be impartial, and slowing down voir
dire by failing to provide a list of prospective jurors in the
order they will be called."
As a result of extensive discussions between CAOC, the
California Defense Counsel, the California Judges Association,
and the Judicial Council, this bill, as amended, would add
language to the civil trial voir dire statute in order to
bolster that original intent while still preserving the
discretion of judges over the form and subject matter of voir
dire.
Specifically, the bill, as amended, would prohibit the use of
blanket time limits on the process and would provide that the
trial judge should allow a brief opening statement by each
party prior to the commencement of the oral questioning phase
of the voir dire process. The bill would also prohibit courts
from arbitrarily or unreasonably refusing to submit reasonable
written questionnaires and would provide that where a
questionnaire is utilized, the parties should be given
reasonable time to evaluate the responses to the
questionnaires before oral questioning commences. Lastly, the
bill would provide that the court in civil trials should
provide the parties with both the alphabetical list and the
list of prospective jurors in the order in which they will be
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called in order to help facilitate the jury selection process.
Support : Asian Americans for Civil Rights & Equality (AACRE);
California Chamber of Commerce; California Defense Counsel
(CDC); Consumer Attorneys of California (CAOC); Judicial Council
(on the second section of the bill, pertaining to additur and
remittitur); Legal Aid Association of California (LAAC);
OneJustice
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 3820 (Brown, Ch. 1232, Stats. 1990) See
Background.
Prior Vote :
Senate Judiciary Committee (Ayes 5, Noes 0)
Assembly Floor (Ayes 73, Noes 1)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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