Georgia Tort Reform Bill And Voir Dire Procedure.

The amendment to O.C.G.A. 9-10-184 reads (in part) as follows:

Nothing in this Code section shall be construed to prohibit counsel from asking prospective jurors during voir dire whether they could return a verdict that does not award any damages or a verdict in excess of some unspecified amount, provided that such question is supported by the evidence.

At first blush, it is somewhat unclear what “unspecified amount” means. This new language creates apparent ambiguity in the voir dire process and may lead to litigation relating to this amendment.

Plaintiffs’ attorneys routinely ask if jurors have a “ceiling” on damages or would hesitate to award “millions of dollars” if warranted. Such questions are aimed at identifying jurors who wouldn’t award full, fair damages despite the proof. For example, a juror who says they “could not award a multi-million-dollar verdict even if the law and evidence call for it” reveals a bias and can be challenged for cause​.

Background on Voir Dire in Georgia – Purpose and Permissible Questions

O.C.G.A. § 15-12-133 grants parties the right to question prospective jurors individually on “any matter or thing” that might reveal “any inclination, leaning, or bias” regarding the case. The “single purpose of voir dire” is to ensure jurors can be impartial – i.e., decide based solely on the evidence and law, without preconceived biases. Freeman v. State, 132 Ga. App. 615. Thus, inquiry into jurors’ attitudes about key issues in the case is not just allowed but vital.

Interpreting the “Unspecified Amount” Language

In practice, what does this new statutory language mean? For example:

• Can the plaintiff’s attorney ask the jurors if they could award pain and suffering damages in excess of $1,000,000 or $10,000,000 if warranted?

• Or, must the plaintiff’s attorney use vague language as to the amount? For example, asking the jury if they could award “very high” non-economic damages if warranted by the evidence.

The later would not fit the plain language of the amended statute. Per O.C.G.A. 9-10-184 (as amended), counsel is permitted to ask if the jury can award “in excess of” of the so called “unspecified amount”. By way of example, consider the following question:

• “Could you return a verdict in excess of very high non-economic damages if the evidence supports it?”

The above question is nonsensical and totally unclear. The “in excess of” language requires an objective point of references or else it is meaningless. One of the key principles of statutory interpretation is that the legislature does not enact meaningless or superfluous language. Therefore, the legislative intent is to allow plaintiffs’ counsel to ask the jury if they could return a verdict for damages in excess of a specific dollar amount.

The “unspecified” language is simply a prohibition against arguing for the non-economic damages that will be sought in the case during the voire dire process.

Constitutional Right to Jury Trial in Georgia

Moreover, a juror who secretly believes “damage awards for pain and suffering should never exceed $100,000, no matter what” might pass through voir dire unchallenged if counsel cannot ask about attitudes toward large awards. Barring questioning about specific damage “ceilings” of prospective jurors would undermine the plaintiff’s ability to ensure an impartial jury. Given Georgia’s constitutional and statutory framework, such a ban is likely vulnerable to constitutional challenge. It directly clashes with the inviolate right to trial by jury. **Georgia Const. Art. I, § I, ¶ XI(a)*. A statute prohibiting that inquiry (e.g. banning any mention of specific amounts during voir dire) would likely be struck down in Georgia as unconstitutional, as it impedes selecting an impartial jury.

Conclusion

The legislature intented to allow plaintiff’s counsel to retain the right to ask the jury if they could return a verict in excess of a specific amount if warranted by the evidence.

Source: Legislative History; Rules Subcommittee on Lawsuit Reform; https://www.youtube.com/watch?v=Y3_mXkS8aZc&t=815s (1:16:21 – 1:18:25);