Federal Judges Association Newsletter June 30, 2006 by zkb18853


									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

  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 jfigliulo@fslegal.com 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:

                      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.


                                                            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

   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.


   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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