A Proposal to Make Jury Trials More Workable for Jurors

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“A jury of peers requires all segments of the community”

By Daniel E. Gustafson

One of the problems that arises in jury selection is that certain prospective jurors cannot serve because being a juror imposes a hardship on their employment or their small business operation.  Because judges are rightly sensitive to such issues, the jury pool becomes skewed against people that cannot take time off work or be away from their small businesses.

There is a solution and one that works in practice.  Some courts already have implemented this process.  It is an adjustment to the trial day schedule and although it sounds like less trial time and as a result, more trial days, in my experience, this practice shortens trials (by number of days) and allows jurors to still spend a large portion of their day at their job or running their small business.

The alternate trial day concept (not my original idea by the way) is straightforward but it depends on a set of rules designed to make each hour of jury face time uninterrupted and seeks to eliminate most if not all bench conferences or arguments while the jury waits. First, the trial day is 8 am to 1 pm Monday through Friday. Second, there is no lunch break (just a short break at 10:30 for 15 minutes).  As a result, the alternate look provides approximately 25 hours of trial time per week. That seems like less than a 9:30 am to 4:30 pm day (7 hours per day) but when you subtract lunches, breaks and lawyer arguments, the two different week schedules look very similar.  But for the jury, the benefit is clear: they are off every afternoon at 1 pm and can attend to their business or job (and as a result, less need to be excused for hardship).

But the alternate trial day only works if you implement a set of corresponding rules.  First, the parties and the court need to agree on advance disclosure of witnesses, deposition designations and exhibits.  This is generally the practice now in most trials but my experience is that the earlier the disclosure (more like 36-48 hours ahead of testimony/use of depositions or exhibits), the more likely that disputes can be resolved by the parties or ruled on by the court.  This is a key component of the alternate trial day because one important underlying premise is that long jury breaks – before witnesses or during bench conferences – (while the jury waits) will be eliminated.

Second, after the jury is excused at 1 pm, the parties and the court break for lunch but not for the day.  At 3 pm or so, they return to the Court to go through any disputes that might arise in the next day’s testimony, deposition excerpts or exhibits.  Each party must raise anticipated objections to the other side’s planned trial day so that the court can rule on objections or give a motion in limine like guidance ahead of time.  Although this often takes an hour or two, the arguments, discussions and resolutions of these issues takes place when the jury has gone home instead of while they wait in the jury room.  The focus is always on the jury.  When they are present, testimony and exhibits are being presented.

Third, each side is permitted to make mini statements to the jury during the trial that introduce the testimony, deposition excerpts or exhibits.  Akin to opening statements (and in addition to openings), the lawyers are permitted to introduce the day or segment by explaining to the jury “you are now going to hear ….”  The other side also gets to respond by explaining “you will see that Ms. Smith never says ….”  These are just examples of course but the point is that by allowing mini statements, the parties can focus the jury on what is coming up and why it matters. These mini statements are limited by cumulative time for the trial (say 1 hour per week).

Fourth, the trial time of each side is timed by a cumulative total – for example – 25 hours. This is a more common practice in recent years but essential to the alternate trial day concept. That time limit includes the time that that side is presenting.  So opening statements, direct exams, cross exams, redirect, mini statements and closing arguments.  Time is kept by a person for each side and the parties true up the time each day at the end of trial and present the time totals to the court for recording.

The key to a representative jury is to have all segments of the community present in the jury pool and available for service even when the trial takes a week or more.  Allowing the jury to be excused every day at 1 pm makes it more likely that those jurors with full time jobs or small businesses can participate without undue hardship. Of course, it will still be a sacrifice but all public service requires some.  What the legal system needs to do is make sure to minimize the sacrifice so all potential jurors can participate.

Daniel E. Gustafson is a founding member of Gustafson Gluek PLLC. Mr. Gustafson has dedicated his career to helping individuals and small businesses litigate against large corporations for various antitrust, product defect or consumer fraud violations. He has also strived to use his legal skills to represent those who cannot otherwise afford a lawyer.