By the Honorable Catherine Shaffer
Though it surprises me to realize how much time has gone by, I became a Superior Court (general jurisdiction) judge in King County, Washington, twenty years ago, in 2000. Luckily for me, that was also the year that the Washington State Jury Commission made its report on recommended jury practices, based on its own research and research by jury commissions in other states. I took the report very seriously, and it has shaped my practice in civil cases ever since. Most of the “tricks” I discuss in this article were drawn from that report.
In every civil case tried to a jury in my court, I conduct a detailed Civil Rule 16 conference, with the lawyers attending in person, usually meeting with me in my jury room. If the case is straightforward, I generally do this on the Friday afternoon before the trial begins on Monday. If it is complex, the conference occurs six to two weeks before trial. I have three principal objectives at these conferences: 1) to acquaint the lawyers with my jury practices; 2) to get a detailed witness by witness estimate of the time needed for trial, from which I create a schedule for the jurors; and 3) to get the lawyers to provide me with an “agreed” set of jury instructions that both sides want, from which we can draw advance introductory instructions for jurors. At these conferences, I show the lawyers a humorous video about an imaginary class where students are not allowed to take notes, are not told what will be on the test until the end, must listen to teachers talk about complex subjects without being allowed to ask questions and are required to look at visual items at the same time teachers are speaking about other topics. It’s a great way to get lawyers thinking about helping the jury understand their case. I also have the lawyers come out with me to my courtroom and sit in my jury box. This really helps the lawyers to get a sense of how challenging it can be for jurors to see, and tends to greatly improve the visibility of exhibits. And I show the lawyers a sample juror notebook so they can start to think about how to work with the notebooks.
What are these notebooks she is talking about, you may be wondering? In every case, whether criminal or civil, each juror in my court upon empanelment in the jury receives a three ring notebook. The front of the notebook bears the juror’s number. In the front pocket of each notebook is a stenographic pad with the juror’s number, and a pen. The first document in the notebook is the case schedule, which shows the hours each day we expect to be in session, the date the case is expected to go to the jury for deliberation, and the times we normally take breaks. It also shows my name, courtroom number, and court telephone number, and we provide the jurors with their own copy of these schedules on request, redacted to remove the case name and number. The next item in the notebook is a list of potential witnesses. In every notebook we also provide the standard preliminary instruction, which includes standard language on note-taking, so that the jurors can follow that instruction as I give it to them, if they choose. In each case, at the end of the case, we give each juror in their notebooks a copy of the final instructions. And in civil cases, the final pocket of the notebook holds the standard forms that my state uses for jurors posing written questions to witnesses.
In civil cases, I also encourage the lawyers to use the juror notebooks for other items as well. In complex cases, it can be extremely helpful to provide jurors with special items, such as agreed glossaries of specialized terms, agreed chronologies of events, or agreed corporate organizational charts that show witness titles. I very strongly encourage lawyers to look at their agreed jury instructions and to consent to allow the jury to be instructed on agreed important definitional instructions. For example, it is very useful in cases involving alleged negligence to advance instruct the jury on the standard definitions of negligence and proximate cause Understanding these terms helps jurors see the relevance of evidence as it is presented. Similarly, it is worthwhile to advance instruct the jurors on the need to treat corporations and individuals in the same fair and unbiased way. Instructing in advance on assessing expert witness testimony is helpful. In fact, it is surprising how many of the final instructions are agreed by all parties, and how many can be useful as advance instructions to orient the jury on key legal concepts. I do not force lawyers to agree to advance instructions, but the video footnoted above is persuasive as to why they often will choose to do so.
Finally, it is always worthwhile for lawyers to consider making copies for the jurors of admitted exhibits that will often be referred to during trial. Jurors often strain to see documents, even when lawyers have blown them up to sufficient size. And in the jury room in deliberations, twelve jurors each have to wait to see the single admitted exhibit in the admitted exhibit notebooks. To avoid these problems, I suggest to lawyers that as to some exhibits that will be referred to often in trial, such as the contract in a contract dispute, the key medical records in a medical negligence case, or the product documents in a products liability case, once a foundation has been laid and the exhibit is admitted, I will permit them to distribute three-hole punched copies of the exhibit to the jurors to put in their notebooks and view during trial when the exhibit is being discussed. To avoid stuffing the juror’s notebooks with huge numbers of exhibits, I suggest that for other, less frequently used exhibits, the lawyers simply distribute copies of the exhibit to jurors after they are admitted, allow the jurors to look at it while the exhibit is being discussed without putting it in their notebooks, then have the jurors pass back their copies of the exhibit for collection when the testimony moves to a different topic.
For those jurisdictions that, like mine, allow jurors to pose written questions to witnesses in civil cases, here is my procedure. I tell the jurors during my advance trial instruction, which includes specific language on the guidelines for posing such questions, that when live witnesses are called to the stand, they should remove their question form, put the name of the witness on the form, and jot down questions as the witness testifies. I tell them that many of those questions will be answered as the lawyers examine, and to cross off answered questions as they are answered. At the end of the witness’ testimony, whether or not the jurors have written anything on their form, they all pass down their forms for my bailiff to collect. This keeps juror questions anonymous. Then I review the questions briefly at sidebar with counsel to decide which will be asked. Then I pose the questions that will be asked to the witness. Then the party that called the witness asks follow up questions, followed by the party that did not call the witnesses. There are no further follow up rounds: the witness leaves the stand. Juror questions are filed with the court clerk.
I hope my fellow civil jury enthusiasts find these practices interesting, and perhaps helpful. There does always seem to be a slightly better way to build our civil jury trial mousetraps.
 For those who want to read the whole report, here is the link: https://www.courts.wa.gov/committee/pdf/Jury_Commission_Report.pdf