May 01, 2018

What Judges Can Do to Preserve Jury Trials

By Stephen Susman

As someone who has tried cases for 50 years and has most recently served as the executive director of the Civil Jury Project at New York University School of Law, I have become convinced that trial judges hold the keys to preserving a viable public dispute resolution system in general and jury trials in particular. Here are some things they can do now, without any change in the laws or rules, to reduce the expense and increase the reliability of public trials:

  • At the first scheduling conference, set a definite, nonmovable trial date, or alternatively a fixed and short window within which discovery must be completed. One of the reasons that private dispute resolution is replacing public trials is that the parties who hire arbitrators can agree upon the exact date for the hearing with no chance of postponements. Courts make the mistake of not setting trial dates until the cases are trial ready and once they do, 90 percent of motions to continue are granted. Starting and stopping are expensive. So is having a long time to engage in discovery. If the court cannot set a trial date in advance, it most certainly can set a short window within which discovery must be completed.
  • At the same conference, after inquiring of counsel, set a fixed amount of time for the trial and how that time will be divided among the parties. The biggest complaint of jurors is that the trials last too long and are too repetitive. The biggest reason that judges excuse otherwise great jurors is that the length or hours of the trials impose hardship on those who are highly educated or employed. If the lawyers knew at the beginning how much time they would have to try their cases, the judge might encourage them to take fewer non-discovery–type depositions that will never be shown to the jury. Most lawyers who have participated in a time-limited trial say that it improved their presentations.
  • Require that the lawyers bring their clients to the first conference and meet and confer at the courthouse on which Pretrial and Trial Agreements listed at TrialByAgreement.com they can agree to and explain to the court why they cannot agree to others. The judge can reduce the cost of discovery by either imposing limits or getting the parties to agree upon limits. No deposition should last more than three hours; no expert who has provided a report needs to be deposed. The Pretrial Agreements are now being used by some courts to get the parties to make their own rules for expediting discovery.
  • Abide by the Juror’s Bill of Rights developed by Judge Mark W. Bennett of the Northern District of Iowa. Judge Bennett focuses on improving the experience of jurors. His suggestions—which include no sidebars; starting/stopping/breaking on time; plain English instructions; the right to take notes and ask questions; and limits on the length of trial, openings, and closings and the numbers of exhibits and witnesses—can be found at Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: A Federal Trial Judge’s View, 48 Ariz. St. L. J. 481 (2016), available at http://arizonastatelawjournal.org/wp-content/uploads/2017/01/Bennett_Final.pdf.
  • Allow the lawyers to participate in conducting voir dire. One of the reasons lawyers are hesitant to recommend jury trials is that many courts have deprived them of playing any meaningful role in jury selection. In federal courts, where verdicts must be unanimous, one biased juror can affect the outcome. Voir dire exams conducted by some judges may be thorough; others are perfunctory. Even if the lawyer believes he is putting on a great case, he cannot be sure that a juror with undisclosed biases sees it that way.
  • Adopt a standard questionnaire that will be completed by potential jurors and provided to the attorneys before they report for jury duty. Attorneys should not have to waste time arguing about things that a court could readily standardize, like jury questionnaires or protective orders. Most lawyers appreciate the additional information provided by one- or two-page questionnaires, if they receive the completed questionnaires in time to study them before they must conduct voir dire or exercise their “for cause” or peremptory challenges.
  • Require a telephone conference with the clients on the line, before anyone can file a motion, including a dispositive one, to get the court’s reaction and leave. Some courts require a two-page letter preceding a telephone call. Either or both give the judge an opportunity to let the parties know her reaction and often discourage the filing of formal motions and a briefing schedule that multiplies expense.
  • Entertain oral argument, in person or by phone, on every motion. The disappearing trial judge needs to come out of chambers and hear from the lawyers. It’s fine for the judge to give each side only 10 or 5 minutes. And if the judge can rule from the bench after she does so, so much the better.
  • Do not routinely require mediation before dispositive motions are ruled upon or as a condition to going to trial. While the court should encourage mediation by inquiring whether the parties would consider it, no one should be pressured to waste the time and money in mediation when they really need a decision by a judge or jury.
  • Eliminate the need for a pretrial order: Require will-call witness and will-show exhibit lists and preliminary substantive instructions but no pretrial deposition designations, stipulations, or issues of fact and law. Many courts are doing away with the requirement of a traditional pretrial order. The biggest waste of time is the need to designate deposition testimony “just in case” rather than “just in time.” Most of the testimony designated in advance never is played to the jury. That will be even more true if the court sets time limits. Forty-eight hours is ample notice for counter-designations, objections, and rulings.
  • Give jurors the same tools judges use in bench trials and arbitrators use in arbitrations. Judges and arbitrators can ask questions of witnesses, keep notes, get real-time transcripts, discuss the case with their law clerks or other members of the tribunal, and know what the law is before they hear the evidence. Denying the same tools to jurors adds to the perception that their verdict is likely to be defective. In civil cases, without any rule changes, judges have the ability to allow jurors to ask questions, take notes, discuss the evidence with other jurors before final deliberations, be given individual copies of instructions on the law and the verdict form at the start of the case, and hear interim arguments of counsel. None of these changes would delay the trial and all would improve jury comprehension.
  • Adopt Young Lawyer rules that encourage parties to assign young lawyers stand-up roles in court. Many courts are promising oral arguments if they are informed in advance that a young lawyer will be doing it. They also could promise preferential trial settings for those cases where a young lawyer will be making the opening and closing and cross-examining witnesses.
  • Encourage discharged jurors to share their reaction to their experience with the court and the lawyers so that we can together improve future trials. Judges should not assume that jurors want to avoid talking about their experiences. They should encourage jurors to provide feedback to the court and the lawyers. They can do this by telling the jurors they may go to the website WeThePeopleWeTheJury.com and blog about their experience.

Today, the average judge around the country, state or federal, is probably trying less than five civil cases, jury or bench, per year. The above suggestions may not reverse this trend, but they will likely prevent public dispute resolution in general and jury trials in particular from vanishing altogether. They all can be adopted without the need for any rule change and without the consent of counsel. If judges assume there is nothing they can do to prevent trials from vanishing, they will indeed vanish. Instead, I urge them to experiment with some of the above ideas. The preservation of many of our other constitutional rights may depend on preserving public trials as a trusted and affordable means of dispute resolution.