By Christopher A. Kenney
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.
Conclusion
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.