Federal Judges Association Newsletter June 30, 2006 7th Circuit Jury Project by James R. Figliulo, Figliulo & Silverman, PC The 7th Circuit American Jury Project is a joint effort by judges, lawyers, law professors and jury consultants to test certain innovations by putting them to work in civil jury trials. The project was inspired by the American Bar Association's adoption of the Principles for Juries and Jury Trials prepared by the distinguished American Jury Project Commission. We formed the 7th Circuit Jury Project Commission, selected seven concepts to test and prepared a Project Manual with a substantive section describing each concept and the procedures for each participating judge to use in implementing that concept. We also prepared questionnaires to be completed by the judge, lawyers and jurors after each trial. These questions were designed to measure and evaluate their experience with each concept. The seven concepts tested during this first phase of the Project were: 1. Questions by the Jury During Trial; 2. Interim Statements to the Jury by Counsel; 3. Twelve Person Juries; 4. Jury Selection Questionnaires; 5. Preliminary Substantive Jury Instructions; 6. Trial Time Limits; 7. Enhancing Jury Deliberations. Our test period for this first phase began in October 2005 and continued through early May 2006. One or more of the concepts were used in 38 civil jury trials as part of this study. We compiled the results from the questionnaires and prepared our Executive Summary of our Findings. We presented our Findings at the Annual Meeting of the 7th Circuit Bar Association and Judicial Conference on May 22, 2006. The 7th Circuit Project Manual, including the questionnaires and the Executive Summary of our findings, is available online on the 7th Circuit Bar Association website: www.7thcircuitbar.org. Also, if anyone wants a CD, which includes the same information, please contact me at firstname.lastname@example.org and we will send you a CD. Juror Questions for Witnesses Allowing jurors to submit questions to witnesses generated the most interest among judges, lawyers and the media. Professor Shari Seidman Diamond, a recognized academic expert on juries, did an analysis of the experience with that concept. Professor Diamond has also reviewed or conducted studies of juror questions to witnesses in state courts in Arizona and other courts. In the 7th Circuit study, judges permitted juror questions to witnesses in 27 cases. Jurors actually submitted questions in 20 of the 27 cases. The median number of questions per case was 16, an average of six per day of trial. The judges permitted answers to 69% of the submitted questions and more than half (62%) of the jurors submitted questions. The 7th Circuit experience was that most of the questions were seeking clarification of the witness' testimony or an attempt to fill in a gap to aid the jury's understanding of the evidence. Our findings from our questionnaires confirmed that jurors had a very positive response to the process. Eighty percent (80%) believed that allowing jurors to ask questions increased their understanding of the case and 98% stated that it increased their satisfaction with the trial process. Ninety-four percent (94%) of the judges who used this concept found that permitting jurors to ask questions appeared to increase the jurors' understanding of the case, as reflected in the following table: JUDICIAL EVALUATION OF THE EFFECTS OF PERMITTING JUROR QUESTIONS* Juror Judge Fairness Efficiency Understanding Satisfaction Increased 83 6 94 59 No Effect 17 61 6 41 Decreased 0 33 0 0 Don't Know 0 0 0 0 Total 100% 100% 100% 100% * in cases in which jurors could submit questions after each witness The trial attorneys were less enthusiastic about the positive effect of juror questions on the fairness of the trial, but also, for the most part, agreed that juror questions to the witnesses improved the jurors' understanding of the case. ATTORNEY EVALUATION OF JUROR QUESTIONS* Juror Attorney Fairness Efficiency Understanding Satisfaction Increased 48 33 67 50 No Effect 27 23 10 24 Decreased 8 38 2 17 Don't Know 17 6 21 9 Total 100% 100% 100% 100% * in cases in which both plaintiff and defense attorneys provided answers Interestingly, the attorneys who lost the case also felt that juror understanding was increased by permitting the jurors to ask questions. The percentages noted in the above table from the losing attorneys were not significantly different from those referenced above. Overall, our initial findings suggest that juror questions to witnesses merits further study to determine if allowing jurors to submit questions should become a more prevalent practice in our courts. Further commentary and insights on this concept, as used in the 7th Circuit American Jury Project, will be available in an article authored by Judge James Holderman. Judge Holderman is continuing as a co-chair of the Commission and has allowed juror questions and used the other concepts as part of this Project. That article will appear in the next edition of Litigation, The Journal of the Section of Litigation, ABA. Another article about this and other concepts used in our Project is published in "The Circuit Rider," A Journal of the Seventh Circuit Bar Association, May 2006, and is available on our website: www.7thcircuitbar.org. Conclusion This article just touches on one of the concepts being tested as part of the 7th Circuit American Jury Project. We are presently refining and improving the Project Manual to reflect the lessons we have already learned and improve the procedures. We will continue this test with improved procedures and even more effective reporting of results. The more experience we gain from the use of these concepts, the more data will be available to evaluate the merits of employing these concepts in jury trials. The ability to consider this or any similar project depends on the willingness of judges to participate and to lead. Indeed, our experience is that the trial attorneys are more resistant to these innovations than the judges. At least with juror questions, however, after they tried it, the majority of the trial lawyers also believed it was worthwhile and improved juror understanding of the case. If any new or different concept is to be tried, the judges need to be willing to try it. We are most fortunate in the 7th Circuit to have the leadership of Chief Circuit Judge Joel M. Flaum and encouragement of the judiciary as part of this Project. One of the great values of this Project has been the benefits derived from the process of judges, trial lawyers, law professors and jury experts working together to study the jury experience, test new concepts and evaluate their merits. This is good for all members of the legal profession, for jurors, for litigants and for our system of justice.
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