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Seventh Circuit Jury Project Confirms Innovations

By Katherine A. Wittenberg, Litigation News Associate Editor – November 25, 2008

The Seventh Circuit Bar Association American Jury Project Commission [PDF] recently completed a significant pilot project implementing recommendations of the American Bar Association’s Principles for Juries and Jury Trials [PDF]. The pilot program’s results confirm that the principles truly are “best practices.”

ABA Jury Project
The ABA’s American Jury Project developed 19 general principles regarding all aspects of jury trials. “The goal of the American Jury Project was to develop national best practices for dealing with juries and jury trials—from summons to post-verdict interviews, explains Patricia Lee Refo, Phoenix, former chair of the ABA Section of Litigation and Section Delegate to the ABA House of Delegates. Refo also spearheaded the ABA’s American Jury Project. “We wanted to help bring the jury trial into the twenty-first century and to provide a sort of blue print and resource for jurisdictions who were looking at jury innovations,” she says.

Seventh Circuit Project
In one of the first pilot projects to test the ABA’s general principles, the Seventh Circuit Bar Association Commission studied the efficacy of several jury innovations in 50 jury trials from 2005 through 2008. The commission assessed 12-person juries, preliminary substantive jury instructions, questions by the jury during trial, interim statements to the jury by counsel, enhancing jury deliberations, jury-selection questionnaires, and trial time limits. The project received very positive reviews from jurors, lawyers, and judges.

Twelve-Person Juries
The commission tested the concept of 12-person juries and recommends the use of such juries “when practicable.” When a dozen jurors are involved in the decision-making process, “the jurors took [the deliberations] much more seriously and the outcome was better,” opines David A. Soley, Portland, ME, cochair of the Section’s Trial Practice Committee.

Twelve people offer “not just diversity from a racial perspective, but also diversity in gender, ethnic, geographic, and professional” makeup, adds Dennis J. Drasco, Roseland, NJ, cochair of the ABA’s American Jury Project, chair of the Commission on the American Jury Project, and former Section chair. With 12-person juries, Drasco says, there will be a “larger cross section of the community” that will deliberate longer, exchange more diverse points of view, and ultimately reach the fairest result.

Preliminary Jury Instructions
The commission also tested the concept of preliminary jury instructions, which involves providing jurors with substantive instructions—including an explicit description of the claims, the requisite elements of proof, and the other essential law governing the case—before any evidence is presented at trial. The commission strongly recommends this innovation.

Early jury instructions provide many advantages, says Dori Ann Hanswirth, New York, cochair of the Section’s Trial Practice Committee. Explaining case issues at the beginning of a trial “puts the entire testimony into better context,” Hanswirth says. “Waiting until the end [to provide jury instructions] can leave jurors in the dark as to what they are supposed to be listening for—particularly if you have a long trial,” she notes.

Jury Questions
With respect to jury questions, the commission “strongly recommends” that jurors be allowed to submit proposed questions for vetting by the judge and attorneys. Allowing juror questions is predicated on the notion that, with appropriate safeguards, juror questioning can materially advance the pursuit of truth. On a practical front, juror questions can help attorneys “understand what the jurors are thinking about and allow the attorneys to focus” their case toward the jury’s concerns, Soley says.

Interim Jury Statements
Another innovation strongly recommended by the commission is interim jury statements. Permitting attorneys to present statements to the jury during trial helps explain forthcoming evidence, contextualize and recall evidence already presented, streamline the presentation of evidence, and keep jurors interested and involved in the case. The Seventh Circuit project indicates that a majority of jurors found interim statements to be helpful and judges overwhelmingly supported this concept.

Overall, the commission found the ABA principles to have enhanced juror understanding of trial evidence and increased juror satisfaction with trials. The commission’s final report is intended “as a springboard for future refinement and innovation in the area of jury studies,” and the commission strongly encourages state and federal trial judges to test and critique the ABA principles.


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