Innovation in Jury Trials

Should civil jurors be allowed to submit questions to witnesses in civil trial in federal court?  Should counsel be allowed to make interim statements to the jury during longer trials?  What about juries being allowed to take notes during trial?  Or giving the jury preliminary substantive instructions on the law before opening statements?

These suggestions are groundbreaking practices that the American Bar Association Jury Project endorsed in 2005, and for th past five years trial court judges in the 7th U.S. Circuit Court of Appeals have been using.

By and large, the results were positive and satisfying from judges, jurors and lawyers.  Judges who implemented many of these practices said they would continue to do so and encourage other federal judges around the country to try them in their courtrooms.

James R. Figliulo, a leading attorney in Chicago, and Chief Judge James F. Holderman of the Northern District of Illinois spearheaded the project here.  As enthusiastic supporters, they found that a renewed interest in jury trials is another positive side effect in the quest to seek the truth.

I sponsored a two-day symposium in 1998 at DePaul University College of Law that examined “The American Civil Jury: Illusion or Reality.”  Academics from around the country discussed the civil jury, examining many of these issues.  Their conclusions can be found in 48 DePaul Law Rev. 2 (winter 1998).

In considering whether to adopt these procedures, academics raised the issue of jury involvement within the context of today’s society.  Partly forced by the digital-age generation of jurors whose demand for information comes from the Internet, the Jury Project looked for ways for jurors to more easily digest evidence and come to a just decision.

Some trial judges in the 7th Circuit have allowed lawyers to make mini-closing arguments on a weekly basis in lengthy trials.  Others have allowed jurors to ask questions at the end of each witness’s testimony by submitting them on writing to the judge, who determines whether each question addresses a legitimate unanswered or confusing issue.  Still others have jurors fill out extensive questionnaires before voir dire so that the oral questioning is more succinct and to the point.

For those who regularly practice in state court, these changes are quite eye-opening.  Many questions and concerns are raised about allowing jurors to submit written questions.  Would it be a subtle way for a juror to convey his or her agenda on an issue?  How would a judge cut off questions?  What if the answers of a subsequent witness elicited questions from a previous witness?  Would that witness be recalled?  Can the juror ask that?  And should a trial court cater to a new generation of learners who demand information in a certain style without a guarantee that it will lead to greater juror comprehension?

The ABA Jury Project didn’t find any of these questions to be a problem and, in fact, welcomed questions that were largely fair concerns that needed to be addressed in order to seek a just result.  The issue was considered in SEC v. Koenig, 557 F.2D 736 (7th Cir. 2009).  There, Chief Judge Frank H. Easterbrook, in writing for a unanimous court, held that jurors submitting questions was allowable, despite “occasional judicial skepticism” that such questions may “reflect concern that allowing jurors to ask questions will lead them to take positions too early in the trial, emulating the advocates by choosing sides and becoming argumentative rather than reflective.”

The court found that jurors’ questions kept them alert and focused, and that the benefits outweigh any risks.  The court left it to the discretion of the trial judge and such discretion was not abused in that case.  As the court found, ignorance is not bliss.  “It is a lot easier (and more reliable) to read jurors” questions than to read the expressions on their faces.”  577 F.3d at 743.

Holderman wrote an excellent article in the winger 2009 issue of the DePaul Law Review:  “As Generations X, Y and Z Determine the Jury’s Verdict, What Is the Judge’s Role?”

In the article, he wrote, “A decade ago, noted legal scholars opined that the relationship between judge and jury has been one in which the judge had the authority to influence – indeed to control – the jury. ...  Over time, however, the judge’s authority to influence and control the jury appropriately decreased.  The relationship between judge and jury has evolved into one in which, ideally, the trial judge acts as a neutral guide through the trial process so that the jurors can fulfill their responsibilities of finding facts based upon an impartial evaluation of the evidence presented by counsel.”

His approach to the role of a judge is an evolving concept.

Place this against the backdrop of jurors who are more reluctant to serve given the lagging economy.  Too many times, I have hear people ask how they can “get out of” jury duty, instead of eagerly wanting to be a part of the process.

I hope the civil justice system also can one day adequately address the issue of attracting jurors who truly represent a cross-section of the community, so that the procedural safe-guards proposed by the ABA Jury Project will have even more meaning.