Expert Advice

By Arturo González
     
      Jury Practice
      The Changing Rules for Jury Trials
      One of the most difficult tasks for litigators is keeping track of all the state and federal rules of court and civil procedure, local rules in each federal district and county?and specific rules used by individual state and federal judges. To make matters more difficult, many of these rules are amended each year.
      This article summarizes a few key changes to the California Rules of Court that took effect January 1, 2007?and explores the likely impact of those changes on civil and criminal jury trials.
     
      Opening Statements Before Jury Selection?
      New California Rule of Court 2.1034 states that before jury selection, "the trial judge may, in his or her discretion, permit brief opening statements by counsel to the panel."
      It remains to be seen which side of a trial benefits most from this rule change, or whether trial judges will actually allow such opening statements. However, it's easy to imagine the audible gasps from a room full of prospective jurors when a plaintiffs lawyer describes the horrible accident that led to the death of the client's child or, in a criminal case, when a prosecutor "briefly" describes the rape of a woman by the defendant.
      It is harder to imagine that such an opening statement would be helpful to defendants in civil or criminal cases. Also, it is possible that such opening statements might interest a juror in the case and increase the likelihood that he or she will be less than forthcoming during voir dire to avoid being challenged.
      Another issue to consider now is how much of your strategic arsenal to use during jury selection, and how much to reserve for the real deal. It may be wise to give the jury just a taste of your best facts and leave them craving more.
      And in cases involving a second panel of jurors, opening statements would presumably be repeated to those who survived challenges. This, too, should give defense counsel pause, as it is already tougher to explain why a defendant "didn't do it."
     
      Jurors as Perry Mason
      Rule 2.1033 provides: "A trial judge should allow jurors to submit written questions directed to witnesses. An opportunity must be given to counsel to object to such questions out of the presence of the jury." While the rule still leaves the trial court with discretion, its implementation could lead more judges to consider allowing jurors to question witnesses.
      I believe that practice will favor prosecutors in criminal cases, because asking questions is a way to eliminate doubt. And in civil cases, allowing jurors to ask questions would most likely benefit the least-prepared lawyers.
     
      Juror Notebooks
      Though reasonable lawyers can differ on the value of juror binders or notebooks, a new rule makes it more likely that trial courts will allow their use. Rule 2.1032 provides: "A trial judge should encourage counsel in complex civil cases to include key documents, exhibits, and other appropriate materials in notebooks for use by jurors during trial to assist them in performing their duties."
      Trial lawyers should carefully consider whether to propose such binders, and if so, which exhibits to include in them. The standard multiple four-inch binders that attorneys commonly use will not be practical, given space constraints in the jury box. Using binders may also distract jurors and cause them to miss important testimony.
     
      Reopening Closing Arguments
      In an attempt to prevent hung juries, new Rule 2.1036(a) provides: "The judge should ask the jury if it has specific concerns which, if resolved, might assist the jury in reaching a verdict." Rule 2.1036(b) then directs that if the judge determines that further action might help the jury reach a verdict, the judge can give additional instructions, clarify previous instructions, or most important, "[p]ermit attorneys to make additional closing arguments." Under the rule, the judge can also permit a combination of these three options, including additional argument and a new jury instruction.
      I believe this change similarly benefits prosecutors in criminal cases and the less-prepared lawyer in a civil case. A hung jury is usually good news for the criminal defendant. Only in rare cases would a criminal defense lawyer want to argue further to convince a hung jury to render a verdict. And in a civil case, the better-prepared lawyer is more likely to have provided jurors with all the facts they need to rule in favor of his or her client.
     
      Arturo J. González (agonzalez@mofo.com) is a partner in the San Francisco office of Morrison & Foerster and chair of the firm's Trial Practice Group.
     

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