A few weeks ago the Wall Street Journal Law Blog wrote about jury reforms adopted by the State of Michigan. Here is the article. Here is a link to the actual reforms that the Michigan Supreme Court adopted.
Key provisions in the Michigan reforms include:
- before evidence is presented the trial judge shall provide the jury with pretrial instructions including on the law applicable to the case.
- the court shall provide each juror with a copy of the instructions.
- at the court’s discretion each party may offer interim commentary during trial.
- deposition summaries can be read during trial with a copy given to the jury.
- the court may permit jurors to ask questions of witnesses. Jurors write their questions down and the judge asks them.
- jurors are permitted to discuss the evidence before deliberations when all jurors are present.
- jurors may ask questions about final instructions.
I love it. The Mississippi Supreme Court should adopt something like this.
Some things about how we present cases to juries is bizarre. For example, think about a big products liability trial.
The court seats a jury and gives them no instructions about what the plaintiff must prove in order to meet their burden of proof. The parties may present evidence for two or three weeks (or longer). At the end of the trial, the trial judge reads jury instructions. And reads jury instructions. And reads jury instructions. I have personally seen jury instructions read for 50 minutes. I’ve talked to lawyers who have seen instructions read for even longer.
The court then gives one copy of the instructions for the use of the entire jury and sends them to the jury room to pick a winner.
I don’t doubt that this was the best way to instruct juries in the 1800’s. But methods of instructing jurors has not kept up with advances in technology and more complex trials.
Tell the jury what the substantive law is before they hear evidence. Give each juror a copy of the instructions. Decide on the front-end substantive instructions at the pre-trial conference. That would make pre-trial conferences more productive and focus the case–the point of the pre-trial order.
We should also do a better job of explaining to jurors on the front end what it means to decide the case based only on the evidence at trial and the Court’s instructions. On this point, we tell jurors; we do not explain. We should explain to them that it’s not appropriate for jurors to start talking in deliberations about what happened when they rolled their vehicle on I-55 or how hurt their Aunt Ethel was when she got rear-ended by an 18–wheeler.
We should also instruct jurors to notify the bailiff or judge if other jurors interject other matters or commentary into deliberations. Tell them they have to report it–don’t make it optional.
Let jurors submit questions for witnesses. I understand they may ask questions that can’t be answered. Tell them that. At least that way they aren’t thinking we are idiots for not providing them with information that they want. Plus, I bet juror questions would often have the added benefit of scaring one side or the other into settlement.
I even like the interim commentary during trial idea. It’s one thing to wait for closing to tie it all together when closing is this afternoon or tomorrow. It’s another thing when closing is in 2 weeks. Interim commentary with a time limitation of a couple of minutes would be tremendously helpful in communicating to the jury the significance of testimony and other evidence without delaying the proceeding.
I know there will be lawyers who disagree with me on this. My response is go watch a bunch of focus group deliberations. Then tell me that we should not be looking for ways to improve jury deliberations.
We could be doing a better job of instructing juries. And we should be.