This is the 10th and final piece in a series of articles on the Civil Jury Project’s proposed innovations that can resuscitate the American jury trial. Each week, we have offered a summary of a different innovation, the legal support for its use, and empirical studies on its popularity. These innovations have been proposed by academics and practitioners, implemented by state and federal judges, and are not prohibited in most jurisdictions. Importantly, each innovation addresses the main criticisms leveled at juries — that they are too long, too expensive, too unpredictable — and is designed to make trial by civil jury a more desirable form of dispute resolution.
The Trial Innovations: Closing Argument
All of the trial innovations we have proposed over the course of this series of articles are techniques to be used under one unified theory: We can improve the quality of our civil jury trials by assisting jurors in comprehending and processing complex information. That is a benefit to all parties, attorneys and judges. We can accomplish this goal by making relatively minor structural changes to improve voir dire, altering how jurors are allowed to take in and process information, and making trials more efficient.
More Effective Voir Dire
To make trials more effective, we need to ensure that only the most qualified jurors are empaneled. That means allowing attorneys to participate in voir dire to take full advantage of the adversarial system of exposing and striking jurors. To do so meaningfully, we need to ensure that the parties are provided adequate information about prospective jurors through comprehensive pre-voir dire questionnaires.
The other side of this is that prospective jurors need adequate information in order to meaningfully participate in effective voir dire. Prospective jurors should be told about the case through full opening statements so that they can provide answers that are more accurate. Without these practices, attorneys are forced into making arbitrary jury selection decisions, inviting stereotyping and invidious discrimination. By empowering parties with the knowledge necessary to select an acceptable jury of their peers, parties may once again trust their lawsuits to public dispute resolution.
Increased Juror Comprehension
Following this improved voir dire process, those carefully selected jurors need to be given the tools to decide the case accurately. First and foremost, that means setting strict trial time limits. It is unrealistic, and unfair, to expect jurors to pay attention to long-winded lawyers in trials lasting more than a week. Jurors should be provided with substantive instructions at the outset of the trial, rather than at the end, so that they know what they are being asked to decide. If and when they get confused during the trial, they should be able to ask questions in order to quickly clear things up.
Lawyers, too, should be able to present interim arguments in order to explain the relevance of evidence. They should also be able to present testimony in a more helpful fashion, particularly by presenting both sides’ experts back-to-back. Finally, the jurors themselves should be allowed to discuss evidence before final deliberation so that they do not feel their time is wasted. All of these practices together would make for a more informed, engaged and accurate jury.
More Efficient Trials
Perhaps most important is that these innovations will not cost more or extend the length of trial. To the contrary, almost all of them will shave time from the current unnecessarily elongated proceedings. Those few innovations that do not actively save time merely shift the order of already existing practices, adding no additional time while also ensuring verdicts that are more predictable. Moreover, all of these innovations have the potential to make better lawyers, more satisfied parties and happier jurors. Trials that move along quickly are cheaper, and lawyers faced with time constraints will present fewer argument tangents and less repetition. Jurors are also less inconvenienced, and are able to better restructure their private and professional lives so as to provide full attention to the trial. Studies show that jurors who serve on trials to verdict have higher rates of civil participation generally, and greater appreciation for the judicial system and their communities. Everyone benefits.
Ladies and Gentlemen of the Jury …
The Seventh Amendment to the United States Constitution secures the right of trial by jury in civil cases. Likewise, every state protects the right either through their constitutions, statutes or judicial rules. But a right that cannot be meaningfully exercised is of little value, and America’s jury trials are disappearing at an alarming rate.
Together, by rethinking procedures and practices, we can adopt innovative strategies for reforming civil trials. We hope that this series has helped spark that type of critical thinking and dialogue that our jury system desperately needs.
Richard Loren Jolly is an attorney and research fellow at the Civil Jury Project.
Roy Futterman, Ph.D. is an adviser to the Civil Jury Project. He is a jury consultant, clinical psychologist and director at DOAR, Inc., as well as a columnist for Law360.