One Sunday morning in January I was listening to National Public Radios 'Weekend Edition." I do this frequently as a result of my enjoyment of Will Shortz. Mr. Shortz creates crossword puzzles for the New York Times. He regularly appears on the program with word puzzles that are often intriguing. Having been a member of the National Board of ABOTA for eight full years, I have honed my skills as a crossword puzzle solver during the Board meetings. My good friend, Ted Howard, has used the time to create his own Civilization with the help of his lap top computer. On this particular Sunday I missed Mr. Shortz but heard an interesting segment relating to the temerity of a trial judge in Washington who allowed jurors to ask questions during the proceedings. The report contained brief interviews with various notables, several of whom repeated the oft used story about a college professor who precluded a class from taking notes, asking questions or knowing what the subject of the course would be until just before the final exam. I think we are all a little tired of that particular fable and would appreciate something more creative. The reporter did interview one Arizona attorney whose claim to fame is sitting with her father while he tried a case last year. Surprisingly, this attorney had some valuable insight into the process.
In scene two of this drama, I find myself sitting peacefully in my office watching Air Force jets circling Davis Monthan Air Force Base in Tucson. Ted Schmidt, our chapter president, sent me a particularly terse note forwarding a copy of a letter from Daphne Buns, editor of Voir Dire, and asked me to respond. He tried to "sugar" it with the usual "you know more than anyone else about this...", but I did not take the bait until Daphne subsequently called and asked if I would provide a progress report on Arizona's Grand Experiment with treating jurors as something more than padding in the chairs in that odd-shaped box on the side of the courtroom. I advised that I would if I could limit myself to war stories and not provide a basis for anyone to cite this as legal authority for anything. I think she agreed.
My experience with juror interaction goes back a long ways. As a young (a/k/a inexperienced) lawyer, I had the opportunity to try cases in some of Arizona's sparsely populated counties. I am aware that my California brothers and sisters think that Tucson is nothing more than an eastern suburb of Los Angeles, but I must differ. After all, it is the largest city between San Diego and Dallas unless you get a little off track and drive through Phoenix. In my early career my partners decided that I was less of a risk to the firm and its clients if I did my work where there were no daily newspapers to report the results. One December I found myself in Clifton, Arizona, the county seat of Greenlee County. This is a county so large that it takes jurors up to two-and-one-half hours to get to court. There is only one judge who, at that time, instructed the Sheriff's Department to go out and drive the jurors to court if they had difficulty getting to Clifton. The major piece of litigation I was confronting was the second civil jury trial of the year. The nearest reasonable place to stay was about 45 miles away and my partners, who have since gone on to be a District Court judge, the chief justice of the state Supreme Court and a Court of Appeals judge, were nowhere to be found for advice. During my opening statement, in an ill-fated attempt to bond with these rural jurors, I mentioned that lawyers were regular people like them who could not think of everything. "If you have any questions that we forget, go ahead and ask."
No sooner had these few words left my mouth than I noted a change in the demeanor of the trial judge. I had no idea what seemed to be bothering him. I found out. As I recall, the case was a garden-variety schoolyard accident that resulted in a pretty significant injury to a student's knee. The trial proceeded without incident for a few days but on the third day or so, the jurors felt as if they had plainly heard enough from the lawyers and they were going to take matters into their own hands. They started to pepper the witnesses with questions and had a few choice comments for the court and the lawyers as well. The judge advised me that if I ever tried a stunt like that again that he would take care of my complaints about difficulty with lodging during the course of the trial.
I thought that I had learned my lesson and been spared ever actually interacting with jurors again, save those few minutes after a trial when I want to talk to them and they want to go home. I found that very few will ever tell me what I need to know. They will only stay and chat if they thought I was wonderful. While that is the case most of the time, it has not been all that educational.
Strange things then started to happen in Arizona. First, our Supreme Court, led by one of those partners who deserted me in my time of need, decided that we ought to be nice to each other and exchange all evidence and legal theories before trial so that cases could be resolved quickly or tried on the merits. The doubters pounded their chests and wailed loudly about the loss of the attorney-client privilege and the work product doctrine. The mighty would no longer be able to pummel the weak with paper. The sandbags would be emptied. The cottage industry surrounding discovery would be downsized. Not all these worthy goals have been achieved but, amazingly, there has been a dearth of litigation relating to our pre-trial procedure modifications. Barely had the dust begun to settle when the thought of treating jurors as something other than inanimate objects arose.
After reviewing many studies and reports of all kinds of agencies, the Arizona Supreme Court issued proposed rules for modifying the manner in which jurors participate. Just the term "participate" was enough to frighten the forces that think that change is a conspiracy to steal money from lawyers. I have always been less impressed with the opponents to jury reform as agents for a meaningful agenda than as proponents of the status quo and persons who refuse to make the trial process a meaningful and fully informed way to resolve conflicts. The enabling rules are quite broad but only bits and pieces are fully utilized. The rules are a matter of record so I will not further bore the readers, if there are any left, with the particulars. Rather, I would like to comment upon the practical application and issues that have arisen.
While there were several trials with jury reform prior to implementation of the rules, it is my understanding that the first full trial utilizing the actual rules in their final form took place in Phoenix. I assisted Dugan Barr in the trial of that particular case. Had the result been different, I would have commented that Dugan assisted me. The leading proponent of Arizona's Jury Reform Rules was Judge Michael Dann a Superior Court judge in Maricopa County (Phoenix). He was supported by Judge Michael Brown from Pima County (Tucson). Dugan and I fried the case before an excellent judge, the Honorable Steven Sheldon. Judge Sheldon decided that, even though we were starting the trial in November, we would use the new rules that were scheduled for implementation on December 1, 1995.
The full package of rules provides for various reforms which include note taking, opening statements prior to voir dire, juror notebooks, instructions prior to the taking of evidence, juror deliberation during the trial, and juror questioning of witnesses. At this time, juror deliberations are being videotaped, on a stipulated basis, for evaluation of whether further reforms are necessary. The only one of the reforms that seems to be universally applied is juror questioning. However, the manner of court involvement in this questioning is not uniform.
Had Dugan known that I did not know much more about what was going to happen than he did, he probably would have sent me home. I think our experience was that jurors asked a lot of questions at the beginning of trial and then became more somnambulant as the trial wore on. We adopted a procedure that has become the "industry standard." At the conclusion of each witness, the judge asks the bailiff to pick up any written questions the jury has. We then have a brief bench conference to determine the admissibility of each question and determine whether, and in what form, the question will be asked. When the issues take too long to resolve, the jury is excused and the conference continues until the issues are resolved or the court rules. The court answers certain questions. After the court, reading jurors questions, examines the witness, counsel for each side are permitted to examine on issues raised by the questions. My memory of this initial trial process was that it delayed the proceedings to some degree and seemed to disjoint the routine flow of the trial. At this point, honestly, I do not know if this perception is accurate or only based on the novelty of the circumstance.
Over the past three years, the modifications have evolved. Certain of the modifications have not been implemented to any degree. There was a proposal that counsel could "argue" the case at any time during the proceedings. Theoretically each side would receive a fixed time to argue and the time could be expended at counsel's desire. This process could have provided full-time employment for all the retired debate timers in the world, but the practice has not been implemented. Brief "pre-opening" statements are used in varying degrees. Most commonly, the court asks counsel if they want to offer pre-openings, and most often counsel refuse. Juror note-taking is mandatory in all cases and the notes are restricted to the courtroom until deliberations. Pre-deliberation is allowed and encouraged by some courts. However, such deliberations are precluded unless all jurors are present. I have found this to be invaluable when it is used in conjunction with jury instruction taking place before the evidence is presented. Obviously, these instructions are confined to the matters stipulated in the pre-trial statements as relevant to the particular case. In a premises liability case arising from the electrocution of a guest on the premises, the jurors "pre-deliberated" after each witness on the issue of notice and were able to reach a verdict in a very brief time.
Juror notebooks are used in the vast majority of cases. The intent of the rules is to have counsel agree on the content and have them available at the beginning of trial. This is not often the case. Generally, each side appears with notebooks in hand. The court will often include copies of the instructions. Great care is exercised in only including documents that are critical to the case, less the book lose its value. There is no point in burying the evidence of the medication error or slanderous statement in a volume of documents. When possible, I try to number the pages in accordance with the exhibit numbers for convenience.
Occasionally, the jurors still should he reminded to listen to the evidence and the lawyers rather than read through the entire trial. For extended trials I enclose photographs of the principal witnesses (who are favorable to my client) and their curriculum vitae.
The one universally mandated reform is the ability of jurors to ask questions. At the beginning of the case, as part of the opening instructions, the jurors are advised to write any questions they have. This one instruction tends to mitigate against the free for all that occurred in my first venture into juror interrogation. At the conclusion of the testimony of each witness, the jurors are given a few moments to write their questions and pass them to the bailiff. They are presented to the court and they are reviewed, side bar, with counsel. In virtually all cases, the issues are resolved without excusing the jurors, and most questions are then posed to the witness. Counsel are provided with the opportunity for follow-up on a very limited basis.
After three years, the entire issue has become a virtual "non issue." There have been no reported incidents of juror misconduct and there have been no episodes of substantial interference with the orderly process of trials. The train continues to run on time. There are no reported cases interpreting the rules, which must be a sign of success. There is also no report of any mistrial relating to the behavior of jurors.
Some of the expected evils of juror questioning have proved to be myths created by lawyers thinking they must control every minute detail in a trial. Heaven forbid anyone conceives of an important issue that we do not agree with or have not considered. There are few, if any, instances of inquiries relating to the old bugaboos of insurance coverage, collateral source, or workers compensation liens. The questions are not pejorative and generally, as reported by counsel to National Public Radio, are instructive. When lawyers can listen and hear as effectively as they speak, they can learn volumes about the issues of concern to the jurors at a time when they are still in a position to effectively advocate on behalf of their clients.
Since Daphne promised the chance to share personal experiences. I would like to take a few words to discuss questions that have and, curiously, have not been asked during trials. The tales of jurors asking questions to the secretary who was asked to read the deposition of an absent witness are vastly overstated. After a twenty-year hiatus in my trial practice in Greenlee County, I returned triumphantly to try the first medical malpractice case in the history of the County. My physician client, for fascinating but irrelevant reasons, failed to appear for the trial. In a small community, everyone knew this physician. Yet, no one asked why he was not there. No explanation was offered to the jury other than that he had moved from the community, which all of the jurors already knew. At the conclusion of the trial, I asked the jurors why they had not asked. They responded that he must have had something important to do and that he probably had to work to make money to pay his bills.
Recently, I tried a case involving an accidental discharge of ammonia that allegedly caused lung injuries to the plaintiff. The questions from the jury were fascinating. We were asked whether ammonia was lighter or heavier than air, the direction of the prevailing wind, the effect of humidity on gas dispersal, and the rate at which ammonia vaporized on exposure to air. Since the Ideal Gas Law was only a distant, and painful, memory of my first year in college, I was helpless. Fortunately, Judge Michael Alfred was a pre-med major, and was able to answer a lot of the questions. You may be wondering why we had not presented evidence on these issues. The answer is simple and instructive. They were all unfavorable to my client's position. These questions allowed this particular case to be tried more fairly on the merits than either of the lawyers had intended. This case did demonstrate one of the uncomfortable circumstances that can arise from "demystifying" the trial process for the jurors. During my final argument, I was stressing that a pulmonologist had testified that the plaintiff should not have suffered any long-term ill effects from the ammonia inhalation. One of the jurors looked at me and asked if I didn't think that Dr. Bronniman (the pulmonologist) was awfully young. I looked at her and responded that was the reason I asked him about when he had gone to medical school and about his experience. All this added up to the doctor being in his mid-forties. Her ability to comfortably ask this question was a reflection of the relaxed and participatory ambience of the courtroom. Many of you think that this has gone a little too far.
As with any radical change to process, there can be bumps along the road. All trial practitioners in Arizona are now accustomed to the format of written questions being submitted at the close of the testimony, but there are incidents where juror interaction gets to the point of making even the most innovative counsel a little nervous. Control is hard to release. During a personal injury trial, a neurosurgeon was testifying that he did not believe that the plaintiff's herniated disc was related to the subject automobile accident. He stated that his review of the MRIs substantiated his opinion. A juror raised his hand and the court allowed him to ask just what it was about the MRI that substantiated his position. The witness, a faculty member at the University of Arizona, invited the jurors up to the shadow box and engaged in a tutorial on MRI interpretation. The jurors and the physician engaged in a rapid-fire discussion of MRI technology, validity, and interpretation. The jurors were absolutely spellbound by the bright young man who took all this time to make certain that they understood his position. At the next recess, the court indicated awareness that I looked uncomfortable during this process. I replied that I was perfectly comfortable since I had called this witness, but that I might not have sat so quietly had this been an adverse witness. I must confess that I was not fully satisfied with the court's explanation that the jurors and their questions were identified by the reporter on the record since I had always assumed that we were entitled to object to improper questions no mater who the source. I have spoken with other counsel who concur that witness selection in cases assigned to this division is affected by the "loose" rule interpretation. Parts of witness evaluation in cases assigned to this division involves an analysis of the witness's ability to field questions and engage people in a friendly and convincing manner.
Three years after Arizona jurors began asking questions, the lawyers practicing in the state have found the process to be worthwhile and rewarding. The jurors express their pleasure with the personal involvement, and the minor practical difficulties engendered have been far outweighed by the satisfaction of those called to serve. I do not believe that any of us would speak in favor of reversing our progress and going back to the "good old days" of keeping the jurors out of "the lawyers' business." The sky has not fallen.
(This article was originally published in the Spring 1999 edition of Voir Dire)