Section Review

Thinking outside the box: A review of innovations in trial practice

Trial practice in state and federal court has evolved to include innovative techniques to enhance advocacy and assist the jury in understanding the evidence. Jurors are no longer passive observers to the trial process. Juror questioning of witnesses, interim commentary by lawyers during trials, and substantive preliminary jury instructions are all growing trends in trial practice.

Substantive Preliminary Jury Instructions

Traditionally, jury trials have had the peculiar characteristic that jurors are not instructed on the substantive law they must apply in the case until the end of the trial, after the presentation of all the evidence and the arguments of counsel. This practice has been criticized for decades as being out of touch with the natural way in which jurors process information. These criticisms have led to an increased use of preliminary instructions to jurors on the substantive principles of law they will be asked to apply at the onset of trial, rather than just the end.

At present, most states allow, and a few states even require by court rule, that judges instruct the jury on substantive legal principles before opening statements in addition to final instructions at the end of trial. These substantive instructions typically include matters such as the nature of the plaintiff's claims, the elements of such claims, the burden of proof on the issues in the case, and the defendant's affirmative defenses. On average, substantive preliminary instructions are still only given in less than 20% of cases in jurisdictions where such instructions are not required. Endorsement of the practice by numerous jury reform commissions throughout the country and increased experimentation with the technique has, however, led to a trend of increased use in recent years.

Instructing jurors on substantive legal principles early in the trial can significantly benefit juror understanding and recollection of both the legal principles they must apply and the facts of the case. Research on human information processing predicts, and studies confirm, that providing a prior cognitive structure, or "schema," for the evidence presented to a jury can influence the selection of evidence that is entered into memory and how that evidence is recalled. The framework provided by substantive preliminary instructions has been shown to focus juror attention on legally relevant evidence and to facilitate juror recollection of probative facts and statements. This enhanced focus also aids jurors in making credibility assessments and drawing reasonable inferences during trial.

Providing substantive instruction early on, rather than after weeks of testimony, also takes better advantage of the freshness and attentiveness of the jury early in the trial which enhances the jury's comprehension of the applicable legal principles. The repetition involved in providing substantive instructions both at the beginning and end of trial can likewise help the jury remember and process these instructions as they begin their deliberations. Substantive preliminary instructions can also help jurors resist biases they may bring to the court room by grounding them, from the onset, in a legal framework for the case rather than leaving them unguided until the end of trial.

Substantive preliminary instructions also provide a host of benefits for trial attorneys. Having the judge instruct the jury on legal principles before opening statements allows counsel an early opportunity to further explain the law in a way favorable to their clients, and to advocate a view of how the facts of the case will fit within the legal framework the judge set forth. Further, it allows counsel to preview their case while knowing the precise wording that the judge has used in setting legal framework of the case, rather than being forced to speculate beforehand on the judge's choice of language for final instructions. This also incidentally creates a natural outline for the trial itself. Attorneys can use this outline as an organizational tool for the effective and efficient presentation of their arguments and evidence.

One difficulty that arises with substantive preliminary instructions is that, as a trial progresses, the instructions given at the beginning of trial may need to be changed or supplemented based on the evidence presented. Therefore, the trial judge should stress that it is the final instruction to the jury that they should base their deliberations on. Instructions often change as a result of rulings on legal issues during trial. Consequently, counsel should proactively address legal issues through motions in limine before trial starts.

As more judges come to appreciate the value of preliminary substantive instructions, it is important for attorneys to incorporate them into their trial strategy. By doing so, lawyers can effectively shape the jury's understanding of the issues in the case.

Juror Questioning

The Supreme Judicial Court of Massachusetts has joined the growing number of states that have approved the use of juror questioning, subject to some restrictions. Trial judges are generally given discretion about whether to permit jury questioning, and vary greatly in the procedure they employ by which the jurors' questions are posed to witnesses at trial. Questions from jurors pose the unhealthy prospect of trial counsel being forced to object to a juror's question. Many trial judges guard against the prejudicial effect of such an objection by reviewing with counsel at side bar the juror's proposed questions before posing them to the witnesses. If one or more attorneys object to the question, the objection can be made in the anonymous safe harbor of sidebar far outside the juror's hearing.

Counsel should ask the judge at the pre-trial conference about the judge's particular practice regarding juror questioning. Confirm up front whether questions will be previewed with counsel at sidebar, and whether any objection to the question will preclude the question or simply be ruled on by the judge at sidebar. Counsel should also determine whether questions from jurors posed at the conclusion of a witness's examination will reopen re-direct and re-cross examination of the witness depending on the testimony elicited by the juror's question.

"Interim Commentary"

Innovative trial judges are allowing counsel to make "interim commentary" to the jury during trial. This technique is a hybrid of opening statement and closing argument that counsel may use during trial to explain or advocate interpretation of evidence. The trial judge may give each counsel a limited bank of time for interim commentary during the trial (e.g. seven to ten minutes for each party) which is to be used sparingly. Interim commentary is most effectively used just before commencing cross examination where you can explain/argue that the witness's direct testimony under direct examination was false, or inaccurate, and then proceed to prove the point on cross examination. It is also effectively used after a break in trial to re-orient the jury before resuming a witness's ongoing testimony.

Be Creative And Collaborative When It Helps Your Case Presentation

Don't be afraid to consult with opposing counsel and seek the court's guidance on creative changes with regard to the "sacred cows" of evidence and trial practice. For example, as a general rule a plaintiff's receipt of workers' compensation benefits is collateral source income and, therefore, inadmissible at trial. Nevertheless, sophisticated jurors are frequently aware of the existence of workers' compensation insurance. This is particularly true in personal injury cases, where the hospital records in evidence may include references to workers' compensation insurance benefits, the existence of an "industrial accident" causing the injuries, or billing information to a claims representative. Evidence of collateral source income creates the risk that the jury might erroneously conclude that the plaintiff will get a "double recovery" if they award plaintiff tort damages at trial. Under these circumstances, counsel can submit for the court's consideration a proposed jury instruction informing the jury that the plaintiff has received workers' compensation insurance benefits for the injuries sustained in the accident, and that the benefits will need to be repaid if, but only if, the jury awards the plaintiff damages at trial.


The Twenty First Century courtroom is open to change, however slow or small. Trial lawyers must be in the vanguard of proposing and implementing innovative trial techniques to improve advocacy and the administration of justice.

©2017 Massachusetts Bar Association