Chief Judge Fitzwater Denies Mark Cuban’s Motion For Use Of Jury Questionnaire And Additional Attorney Voir Dire

On September 10, 2013, Chief Judge Fitzwater issued an order (available here) that denied Mark Cuban’s motion for use of jury questionnaire and additional attorney voir dire. Cuban had requested “that the court permit a brief written jury questionnaire and permit both parties’ attorneys to conduct 30 minutes of voir dire” or, alternatively, “60 minutes of attorney voir dire per side.” The SEC opposed.

Chief Judge Fitzwater noted that:

In a civil case, the court usually conducts voir dire in three general phases. First, it poses questions to the entire venire based on questions submitted in advance by the parties and questions that it considers appropriate for the case on trial. Second, it permits one attorney per side to ask follow up questions of the entire venire (a time limit of ten minutes is usually imposed). Third, the court questions individual venire members outside the presence of other venire members regarding hardship excuses and answers given during the questioning of the entire panel that suggest a basis for individual questioning. Before the third phase begins, each party is permitted to request at a bench conference that one or more venire members be questioned further. During the third phase, counsel are permitted to directly question these venire members. This questioning process is untimed and is not charged against counsels’ ten minutes. Counsel can use this phase to develop grounds to challenge a potential juror for cause or to oppose a cause-based challenge.

Chief Judge Fitzwater ultimately found:

The court concludes that its usual three-phase process will be sufficient to address the concerns raised in Cuban’s motion. In the first and third phases, the court can ask[ ] probing questions to ferret out possible bias. During the second phase, counsel can make further, proper inquiries of the entire venire. And during the third phase, counsel can question venire members directly, without preset time constraints, to ensure that the venire members who remain (and who are subject to peremptory strikes) can be fair and impartial.

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