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Michigan Adopts New Jury-Reform Rules

By Lindsay M. Sestile, Litigation News Associate Editor – September 28, 2011

Starting this fall, Michigan litigators will face unfamiliar rules governing how they relate to the juries in the courtrooms where they practice. Specifically, new jury-reform rules [PDF] adopted by the Michigan Supreme Court are designed to get jurors “truly involved, not just sitting in enforced passivity.”


Among other changes under the new rules, jurors may submit questions to witnesses through the judge. They may also take notes for use during deliberations, discuss the case with other jurors before deliberations begin, and take trial exhibits into the jury room.


In an official statement [PDF] released by the court, Chief Justice Robert Young Jr. said the reforms bring Michigan in line with jury trial reforms enacted in Arizona and Massachusetts. Additionally, Young says that the court designed the new rules to give jurors the tools they need to be more effective as they seek the truth. He notes that approximately 30 other states have made such changes or are studying them, adding, “This is our future.”


Under existing rules, jurors may not take notes, ask questions, or speak with other jurors about the case until formal jury deliberations. By contrast, Young claims, the new rules will “allow jurors to be more engaged and make well-informed decisions.”


Additional Features of the Jury-Reform Rules
Under the new rules, judges may require attorneys to prepare depositions summaries rather than reading full depositions into the record. 2.513(F). At the court’s discretion, attorneys may present interim commentary during the course of the trial, rather than being limited to opening and closing statements. 2.513(D).


Judges may also require experts to testify sequentially to assist jurors’ understanding of the issues (2.513(G)(1)) or allow experts to be present during the opposing expert’s testimony so they may aid counsel in formulating appropriate cross-examination (2.513(G)(2)).


At the close of trial, judges may “fairly and impartially sum up the evidence,” although the rule prohibits judges from commenting on a witness’s credibility or stating a conclusion on the ultimate issues before the jury. 2.513(M). To aid the jury during deliberations, judges may also authorize or require attorneys to provide jurors with a notebook that includes a list of witnesses, relevant statutory provisions, copies of any document at issue, jury instructions, and trial exhibits. 2.513(E) and (O).


When it appears a jury has reached impasse during deliberations, the judge may “invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.” 2.513(N)(4).


Vagueness Concerns
“The rules regarding deposition summaries, interim jury deliberations, interim commentary by attorneys, and summing up the evidence by the trial judge are vague, standard-less, and likely will result in more litigation on appeal,” according to James W. Shelson, Jackson, Mississippi, former vice chair of the ABA Section of Litigation’s Trial Practice Committee.


For example, Shelson is critical of the lack of guidance given on the rule permitting interim commentary “at appropriate junctures of the trial.” “This will likely result in a wide variety of procedures for interim commentary in the numerous Michigan trial courts with little or no uniformity,” he argues.


Summary of the evidence by the trial judge is another area likely to cause more litigation on appeal. “Because the parties will seldom agree that the judge’s summary was fair and impartial,” continues Shelson, “this rule invites an extra layer of potential error.”


Moreover, although the new rules now permit discussion of the case among jurors during the trial, all jurors must be present at the time of discussions. “This could be difficult to manage, and may result in increased allegations of juror misconduct if such discussions occur without all jurors present,” worries Shelson.


Anecdotal Experience in Other States Suggests Improvement Is on the Horizon
Similar concerns raised in response to jury reform in other states have not borne out, according to Cynthia Cohen, Manhattan Beach, California, vice chair of the Section of Litigation’s Trial Practice Committee. The movement toward jury reform began in Arizona in the mid-1990s, says Cohen, who has studied jury behavior for more than 20 years: “At first, there was a concern that the reform might create a bias in favor of the plaintiff’s case because jurors would prematurely discuss the evidence put on by the plaintiff.”


In reality, however, the ability to discuss the case before formal deliberations “gave jurors a chance to poke holes in a case at an early stage as well. The plaintiff did not have an advantage just because he was heard first,” Cohen says.


The new Michigan rules will give structure to what is already common activity by jurors, “and will alleviate the stress jurors feel about not being able to talk about the case,” argues Cohen. She also believes the new rules may reduce the incidence of “Google mistrials,” where jurors research evidence on their own in violation of explicit instruction from the court.


“These rules are a definite advantage for the system itself,” Cohen posits, although maybe not an advantage to one side over another. “If you have a strong case,” Cohen says, “you need not fear these rules, but if you have a weak case, these rules won’t make it any better.”


Keywords: litigation, jury-reform rules, Michigan, trial practice


 

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