Editor's Note: For ease in reading, and with the author's permission, edits have been made in punctuation, spacing and all footnotes have been eliminated. Jayden Cool's complete thesis (with complete footnote references) may be found here.
In order to begin saving the jury trial, many scholars have put forth ideas that could be put in place in order to reinvigorate the trial. Each of these suggestions are generally easy to implement and are not invasive. They do not require large, widespread changes, nor do they needlessly burden either party. If every courtroom in the nation put forth even one of these changes, it is likely that we would quickly see a lot of the problems described earlier begin to disappear. Suggestions include changing jury instructions to be easily understood, putting a time limit on trials, changing the way we examine experts, and more.
Jurors
One suggestion is to provide plain English substantive instructions at the start of each trial, rather than archaic and hard to understand instructions at the end. In one example, California switched negligence instructions from:
"One test that is helpful in determining whether or not a person was negligent is to ask and answer whether or not, if a person of ordinary prudence bad been in the same situation and possessed of the same knowledge, he would have foreseen or anticipated that someone might have been injured as a result of his action or inaction. If such a result from certain conduct would be foreseeable by a person of ordinary prudence with like knowledge and in like situation, and if the conduct reasonably could be avoided, then not to avoid it would be negligence."
to:
"In order to decide whether or not the defendant was negligent, there is a test you can use. Consider how a reasonably careful person would have acted in the same situation. Specifically, in order to find the defendant negligent, you would have to answer "yes" to the following two questions: I. Would a reasonably careful person have realized in advance that someone might be injured as a result of the defendant's conduct? And, 2. Could the reasonably careful person have avoided behaving as the defendant did? If your answer to both these questions is "yes," then the defendant is negligent. You can use the same test in deciding whether the plaintiff was negligent."181
Juror comprehension noticeably increased with these changed instructions182. Simply put, doing this would allow for jurors to understand the inner workings of a trial better, to know what to look for throughout the trial, and to understand their role.
In a similar vein, jurors could be provided instructions on how to deliberate. They could be educated on topics on how to negotiate, what topics to focus on, what to avoid, and more. Some may argue that this would be an avenue for judges to tell juries how to act, but with sample instructions, this could be avoided.
Perhaps we should get rid of the instructions altogether. In Michigan, researchers conducted a simulated civil trial, and gave some jurors standard Michigan instructions, some modified instructions, and some no instructions at all183. The jurors who received no instructions and those who received the standard instructions performed the same, whereas the ones who received the rewritten instructions performed substantially better184.
Another suggestion is allowing jurors to conduct internet research on iPads furnished in the jury room. If jurors had specific questions about points of law, they would be allowed to research those questions. There are some elements of concern with this idea, as it would allow jurors to have outside information that attorneys could not control. However, these iPads could be monitored and have limited internet access.
Note taking in general could be beneficial to jurors. Surprisingly, a lot of jurors are forced to just listen and pay attention, with no recourse if they forget what has happened. It makes common sense for jurors to be able to take notes, but some attorneys grew concerned with whether jurors could take notes and pay attention, or whether the notetaking would take too much time. When given the opportunity, in Wisconsin test trials, two-thirds of jurors took notes, and notetakers still paid attention and did not cause undue burden during deliberation185.
Finally, providing jurors, in the jury room, with computerized access to the exhibits and testimony as it is introduced would allow jurors to understand and interact with the exhibits immediately.
Limiting the Length of Trials
Stephen Susman recommended forcing this solution by limiting the number of hours each party has to conduct their trial186. Judges can establish limits at a pretrial conference based on factors such as complexity, party input, and more187. This could also have a trickle-down effect on dispute resolution188. If a judge sets a time limit, lawyers will make different decisions when it comes to discovery and depositions189.
Case law and the Federal Rules of Civil Procedure support this idea:
“At any [pretrial] conference under this rule consideration may be given, and the judge may take appropriate action, with respect to ... (4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence; ... (15) an order establishing a reasonable limit on the time allowed for presenting evidence; and (16) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action190.”
Similarly, the Federal Rules of Evidence require that:
“[t]he judge ... exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment191.”
The Southern District of New York has stated that:
“[t]rial courts have discretion to impose reasonable time limits on the presentation of evidence at trial. This is essential if they are to manage their dockets, as many cases compete for trials and for the attention of judges, and no party has an unlimited call on their time192.”
The Seventh District agreed, saying that judges:
“must exercise strict control over the length of trials, and are therefore entirely within their rights in setting reasonable deadlines in advance and holding the parties to them193.”
And, the Eighth District:
“Trial courts are permitted to impose reasonable time limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence194.”
Upon review, courts have held that the only standard reviewable is upon abuse of discretion:
“Where a district court has set reasonable time limits and has shown flexibility in applying them, that court does not abuse its discretion. Moreover, to overturn a jury verdict based on a party’s failure to use its limited time for witness cross examination would be to invite parties to exhaust their time limits without completing cross-examination, then appeal on due process grounds195.”
Fixing this problem fixes another -- shortening a trial automatically makes the trial less expensive196.
It comes as no surprise to see that attorneys would resist this idea. 31.2% of attorneys who were subject to time limits by a judge would not recommend using it in the future197. They state that constraints that are artificial “hamstring good lawyers without regard for the realities of the case198.” However, a study by the American Bar Association (albeit, a small one of seven trials) showed that time limits did not alter the fairness of the trial199.
Preliminary Substantive Instructions
A majority of the time, judges wait to instruct the jury about the merits, rules, and processes of the case until the very end. Another innovation pioneered by Susman was to move this to the very beginning of the case200. The most common excuse for this behavior is that it would be a waste of time and effort to give instructions on claims and defenses that may be dropped throughout trial.201 There is no reason instructions can be given at the beginning as a primer, and then solidified and given again at the end of trial202.
Once again this innovation is supported by procedure and case law. Federal Civil Procedure Rule 51(b)(3) states that instruction may take place “at any time before the jury is discharged203.” The Ninth Circuit has ruled that preliminary instructions are not prejudicial204. The Massachusetts and Minnesota Rules of Procedure both specifically allow for preliminary instructions205. Only two states specifically disallow these types of instructions - Nevada and Texas206.
This type of instruction has proved effective. When implemented by the New York State Jury Trial Project, 79% of attorneys and 92% of judges found the practice helpful to jurors207. The American Bar Association’s Seventh Circuit Project found a similar result in 80% of jurors, 85% of judges, and 70% of lawyers208. The 2009 Houston Project found that 75% of jurors agreed209.
Juror Posed Questions
The third innovation posed by Susman entails allowing a juror to question a witness210. In short, this process would allow a juror to write down a single question after each lawyer is done examining the witness211. The questions would be gathered and the attorneys and judge would look over the questions; if no one had an objection, the lawyer who called the witness would ask the question, and other attorneys would have an opportunity to cross on that subject212. This practice would allow for more engagement with the jurors, allow jurors to clarify subjects they remain confused on, and keep the jurors awake213.
Surprisingly, there is no rule or precedent that disallows jurors to ask questions214. Some case law encourages the practice215.
The Eighth Circuit has stated: Questioning may tend to transform jurors from neutral fact finders into advocates, that the process of formulating questions may precipitate prematurely the deliberation phase of trial, that jurors may weigh more heavily the answers to questions from each other than the answers to questions from counsel, that jurors may ask questions about legally irrelevant and legally inadmissible evidence, and that an objecting party risks alienating the jury. . . . [But] if juror questions are allowed, the trial court should carefully weigh using a procedure that requires those questions to be submitted in writing or out of the hearing of (and without discussion with) other jurors216.”
Every other federal circuit agrees with this reasoning217. Simply put, this should be left up to the trial court’s discretion in their efforts to allow jurors to remain neutral218. State courts, on the other hand, are all over the place219. Some require jurors to be allowed to ask questions, some prohibit it, and some prohibit it in criminal court, but allow it in civil courts220.
According to the Seventh Circuit Project, 83% of jurors stated that the ability to ask questions helped them understand the facts of the case better221. The New York State Jury Trial Project found that 74% of judges and half of attorneys believed that juror questions helped jurors understand the trial222. The Civil Jury Project/ASTC Survey found that 61.7% of attorneys would recommend the practice223.
Questionnaires Before Voir Dire
The average lawyer only gets a potential juror’s education level, age, occupation, employer, and prior jury experience before starting the voir dire process224. Most of the time this information is only provided as the venire walks into the courtroom225. Courts are beginning towards more comprehensive questionnaires, crafted and agreed to by both sides, in order to shorten voir dire and better identify juror bias226.
Two issues with more comprehensive questionnaires are substance and timing227. Some courts allow anything both sides agree to, and some take into consideration the juror’s privacy, rejecting questions if they are too invasive, irrelevant, or a waste of time228. Timing is difficult because, on one hand, early questionnaires would allow for jurors to avoid having to show up to the courthouse if they are struck229. However, on the other hand, this might allow for jurors or attorneys to comb the internet for information about the other side230. Striking a balance would be difficult, but effective, as it would allow for a disappearing of the time sink that is voir dire.231
Perhaps unsurprisingly, there is plenty of precedent that speaks to the logistics of these questionnaires232. Districts such as Missouri, the Northern District of Ohio, Kentucky, Indiana, and Wisconsin all use more in-depth questionnaires before voir dire233. These questionnaires include juror names234. The previously mentioned ABA’s Seventh Circuit Project found that 78% of judges and 47% of attorneys thought that using these types of questionnaires did not impact the fairness of the system and increased efficiency overall235.
Opening Statements Before Voir Dire
Susman also recommended lawyers give opening statements before picking a jury236. This would not necessarily entail a full opening statement beforehand, but rather a mini-opening to allow potential jurors to have a cursory understanding of the case they might be sitting on237. This would allow for jurors to understand the context of the case, the relevance of answering the attorney’s questions, and spark interest in the case238. California already explicitly allows for this, as their Code of Civil Procedure States:
“[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 process239.” Arizona has something similar240.
When tested by the New York State Jury Trial Project, 77% of judges and attorneys believed that this practice helped jurors understand why they were being questioned241. 91% of jurors rated the practice as very helpful242.
Interim Arguments
This practice would entail attorneys to present arguments outside of opening statements and closing arguments243. This would essentially allow for extra arguments after witnesses testify. Attorneys would be given a specific amount of time for interim arguments and would be allowed to determine how to allot that time244. The ABA specifically encourages this practice, stating:
“[p]arties and courts should be open to a variety of trial techniques to enhance juror comprehension of the issues including: Alteration of the sequencing of expert witness testimony, minor interim openings and closings, and the use of computer simulations, deposition summaries and other aids245.”
This practice has been accepted by the Second Circuit, stating:
“a district court can greatly assist a jury in comprehending complex evidence through the use of intelligent management devices,” and that “such management devices include ... interim explanations by the judge on issues of law and fact and on the limited use of evidence, [and] interim addresses to the jury by counsel246.”
When explored by the ABA’s Seventh Circuit project, they found that 80% of jurors were helpful in aiding their comprehension of the case247.
Back to Back Experts
As noted previously, a common objection to jury trials is the idea that jurors are often confuddled with expert testimony, and are influenced more by style than substance. This practice would allow for experts to either testify sequentially, slowly building on a subject, or allow for two experts with opposing views to testify at the same time, and open a dialogue for the jury248. The only precedent for this practice is a suggestion in Wigmore’s Treatise on Evidence, in which he suggests the use of it249. When studied by the Civil Jury Project, 11% of attorneys opposed this practice, as it allowed for the defense to present their case during the plaintiff’s case in chief250.
Pre-Deliberation Jury Discussion
The final innovation presented by Susman involved allowing jurors to talk to each other about evidence before going into the deliberation251. This would motivate jurors, enable better recall, and ensure more accurate fact finding252. Arizona, Colorado, and North Dakota all allow for this practice253.
The main argument against this practice is that it may allow for jurors to form into groups and make premature verdicts254. Good jury instructions and deliberation training could remedy this.
Overall, I find a majority of these suggestions compelling. I think implementing any or all of these at the trial court level would definitely change things for the better.
Of the suggestions put forth by Susman, I think that preliminary instructions, time limits on trials, and changing the way we use jury instructions are the most powerful tools we can use to secure the prolonged life of the jury trial. These three suggestions all seem very easy to implement -- they are simple changes that take no time to implement. I believe that most attorneys would not oppose these changes, as they could see why they would be helpful. Some of the suggestions, however, might be a lot harder. Changing the way we examine experts and allowing for jurors to interact more in the trial ask for a paradigm shift in how witnesses are used during trial. This would allow for less control during the trial, which is the exact opposite of what most attorneys want. However, it is undeniable that the jury trial is dying. Perhaps a widespread shift is exactly what we need to secure our right to a jury trial.
