MARSH SUPERMARKETS, INC. v. MARSH

Filing 180

ORDER - denying 173 Motion for Leave to Supplement Jury Questionnaire to the extent that he seeks to have his proposed jury questionnaire mailed to the venire in advance of trial. The Court will, however, consider the questions included in both Mr. Marsh's and Marsh Supermarkets' proposed questionnaires in conducting the in-court voir dire. Signed by Judge Sarah Evans Barker on 1/3/2013. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARSH SUPERMARKETS, INC.,

)
)
Plaintiff/Counterclaim-Defendant,
)
)
vs.
)
)
DON E. MARSH,
)
)
Defendant/Counterclaim-Plaintiff
)
)
)
vs.
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)
EMPLOYMENT AGREEMENT BY AND
BETWEEN DON E. MARSH AND MARSH )
SUPERMARKETS, INC., DATED AUGUST )
)
3, 1999 AS AMENDED JANUARY 1, 2005
)
and DECEMBER 30, 2005
)
)
Third-Party Defendant.

1:09-cv-458- SEB-TAB

ENTRY REGARDING DON E. MARSH’S MOTION FOR LEAVE
TO SUPPLEMENT JURY QUESTIONNAIRE
(Docket No. 173)
Don E. Marsh has requested that the Court mail to the venire a questionnaire that his
attorneys have drafted, directing each potential juror to respond in writing and return their answers
to the Court on or before the day the trial is set to commence. Mr. Marsh’s proposed questionnaire
expands the information the Court usually solicits from jurors. He bases his request for additional
data on the grounds that: (1) both he and Marsh Supermarkets are “well known within the jury
catchment area;” (2) it is likely that some, if not many, of the prospective jurors will be familiar with
him from the local television ads in which he has appeared and/or will have done business with
Marsh Supermarkets; and (3) the press coverage related to this litigation within the counties from

which the venire will be summonsed has been substantial. Mr. Marsh asserts that use of his
proposed questionnaire will streamline voir dire and assist the Court in empaneling an unbiased jury.
Marsh Supermarkets does not object to the pending motion, although it does object to some
of Mr. Marsh’s proposed questions as written, offering some changes and edits to several of Mr.
Marsh’s proposed questions and asking that the Court include a number of additional questions as
proposed by Marsh Supermarkets’s lawyers.
District Courts have broad discretion in determining how best to conduct voir dire, including
the method of the examination and the questions to be propounded to the panel. Alcala v. Emhart
Industries, Inc., 495 F.3d 360, 363 (7th Cir. 2007). Parties to a litigation have no right to particular
questions being asked or to the use of a juror questionnaire. Id.; Ex parte Land, 678 So. 2d 224 (Ala.
1996) (a trial court’s refusal to allow the use of a juror questionnaire is not, by itself, an abuse of
discretion.) Voir dire is deemed sufficient if the court asks enough questions to enable the parties
to exercise their challenges intelligently, and, on appeal, a district court’s conduct of jury voir dire
is reversed only for an abuse of discretion. Alcala, 495 F.3d at 363.
We do not doubt that Mr. Marsh’s motion is well-intended, reflecting his interest in having
the in-court voir dire be as efficient and productive as possible. Even so, our review of his proposed
jury questionnaire leaves us unconvinced that it is an altogether helpful vehicle for accomplishing
this goal.
First, the proposed questionnaire consists of a total of fifty-six (56) questions, approximately
half of which elicit from the prospective jurors written narratives explaining their answers or
explicating their views on topics that are neither clear nor straightforward nor relevant, for example, about IRS policy and the meaning and enforceability of contracts. Many of the questions
cannot be answered in a few words or a single sentence and would be more likely to confuse and
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frustrate the respondents than provide useful insights. Further, such a lengthy questionnaire as is
proposed here potentially could be perceived by prospective jurors as unduly burdensome.1 The
proposed questionnaire thus creates the additional risk that some, perhaps even many, of the
prospective jurors will be deterred from jury service, seeking to be excused prior to the morning of
trial in order to avoid having to answer difficult, perhaps obtuse and/or needlessly intrusive
questions.
Second, the extensive questions about contracts, fraud, cheating, Don Marsh, and Marsh
Supermarkets will surely clue in prospective jurors to the fact that this case involves a contract dispute
between Don Marsh and Marsh Supermarkets. Supplied with such detail, the venire may be
tempted to, and could easily perform, internet research in effort to obtain more information about
the case. In fact, the venire conceivably could access the docket of the case through PACER. While
the Court routinely admonishes the venire not to perform such research and not to talk to their
friends and family members about the case, there is no guarantee, especially prior to their report
date, that the Court’s instructions will be heeded or their importance understood.
Third, the extensive questions asking for the prospective juror’s opinions about CEO paid
vacations, CEO compensation, golden parachutes, cheating on income tax returns, capital
investment firms, and the like appear calculated, at least in part, to gage which jurors might be more
sympathetic to one party or the other and/or influence the jury’s thinking before the evidence is
presented. The jury selection process is not conducted to allow the parties to obtain jurors
predisposed to agree with their litigation positions or place certain ideas into the heads of the jurors
before the presentation of the evidence. Rather, the jury selection process is conducted with the goal

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Mr. Marsh’s proposed questionnaire spans six pages. Marsh Supermarkets’ proposed
changes and edits would expand that questionnaire to thirteen pages!
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of securing a fair and impartial jury. This is the sole purpose of properly framed voir dire.
The task of seating a fair and impartial jury will be far less complicated, and the probability
of finding qualified jurors to serve will be increased, if the venire arrives as the courthouse on the
morning of jury selection unaware of the parties involved in the particular case for which they have
been summoned. The parties can be assured that if, on the morning of trial, it turns out that some
of the prospective jurors disclose a disqualifying familiarity with Mr. Marsh or any of the other trial
witnesses, have heard about the case through media reports, or have strong views on subjects that
would make it impossible for them to serve as fair and impartial jurors, the Court is fully able to
quickly identify those individuals and properly, fairly, and efficiently manage the proceedings.
The Court, thus, DENIES Mr. Marsh’s Motion for Leave to Supplement Jury Questionnaire
filed at Docket No. 173 to the extent that he seeks to have his proposed jury questionnaire mailed
to the venire in advance of trial. The Court will, however, consider the questions included in both
Mr. Marsh’s and Marsh Supermarkets’ proposed questionnaires in conducting the in-court voir dire.
IT IS SO ORDERED.
Date:

01/03/2013
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Copies to:
Electronically registered counsel of record

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