By the Honorable Nathaniel Gorton, Judicial Advisor
As a United States District Judge, I almost invariably impose time limitations on counsel in civil jury trials. I find that such limitations benefit not only the jurors who are, of course, required to be present, but also counsel and the parties to the litigation. That is because counsel nearly always over-estimate the amount of time needed to present an effective case and then, in an abundance of caution, tend to call more witnesses and examine them for longer than necessary or advisable. Time limitations force counsel to be more selective and have the added benefit of preserving their rapport with jurors who, not surprisingly, have limited attention spans and are not as enthralled with a particular party’s case as his/her own counsel.
I certainly try to be reasonable in the limitations I impose which are determined only after I hear counsel’s estimates of time needed to put on their respective cases. I find those estimates are usually inflated by about 50% so I start with a presumption that about 2/3 of the combined requested time is really necessary and work backward (or occasionally forward) from there.
I tell counsel their parties will be charged for time spent on openings, direct exam of their own witnesses and cross examination of opponents’ witnesses. The duration of Openings is also limited: 15 minutes for simple, short cases to no more than one hour for the most complex cases. I wait to set limits on closing arguments until the case is well along and I get a better sense of how much time will be needed but it is a rare case that cannot be fully summarized and argued to a jury in less than one hour.
Although the theoretical threat of cutting off attorneys in mid-examination is present, in all my years on the bench, I have never done it or even reached the point where it became a major issue. Once counsel know the rules, they operate within the parameters and I believe are grateful (even if begrudgingly) for the limits after all is said and done.
In preparing this paper I have read with interest a recent article published in the Georgetown Law Journal, written by Stanford Law School Professor Nora Freeman Engstrom. It is entitled: “The Trouble with Trial Time Limits” 106 Georgetown L. Jour. 933 (2018). The gist of Professor Engstrom’s thesis is that the growing use of trial time limits, especially in federal courts, in an era of the “disappearing jury trial”, is unwarranted, may deprive the parties of due process and, in any event, undermines the dignity and thoroughness of contemporary trials and jeopardizes “procedural justice.” Id., at 937.
I take seriously Prof. Engstrom’s constructive criticism and suggested recommendations and commend her article to all trial judges who impose, or are thinking of imposing, time limits in civil jury trials. Prof. Engstrom has made substantive objections to time limitations and they deserve careful and thoughtful responses. The remainder of this paper is my effort to do just that by first noting each objection and then recording my response:
- Rigid time limits make lawyers rush the presentation of facts and hurry oral arguments:
That has not been my experience, especially when I have good trial lawyers before me (which is most of the time). Good lawyers manage the time allotted, synthesize material and focus their listener’s attention just as they are required to do in appellate arguments which are also time-limited.
- Lawyers ought to be allowed to organize and make strategic decisions about their cases without interference from an arbitor who doesn’t know the case nearly as well as they do:
My concern is “defensive lawyering” (which is the professional equivalent of doctors practicing “defensive medicine”) i.e., “If I don’t put on every possible witness who could help my case and elicit every favorable tidbit of evidence, I will be criticized by my client, especially if I lose.” Jurors don’t like to be kept in the box any longer than necessary and I believe most trial judges have a better sense of that boundary than most trial lawyers, at least during the heat of the battle.
- Severe time limits discourage litigants and lawyers from going forward with trials and tend to force unfair settlements:
First, I do not impose “severe” time limits. My limits are set only after I have heard oral arguments at the final pretrial conference and I have mulled the attorneys’ plaintive cries for equity. Moreover, my objective is more long-range. If jurors generally believe that the trial judge is on their side and is doing everything to economize (i.e. shorten) the trial, they will be more attentive and they (and those with whom they converse about their jury service later) will be more willing to serve as jurors in the future.
- Time limits are difficult to administer:
I disagree. I charge time (which is kept by my law clerk) against the inquiring party on direct and cross examination. With respect to objections, very few of which end up at sidebar in my session, time is charged against the “losing” party (or split evenly if it’s a “draw”). I have had no “gaming” of the system, stalling or otherwise, and if I ever perceive any such tactic, the offender will be sanctioned.
- Time limits are often unfair to plaintiffs:
I have not seen that in my trials because, although plaintiffs have the burden of proof, generally it takes just about as long to describe how a product is not dangerous as it does to describe how it caused the injury, etc. Plaintiffs rarely complain about my time allocation and if they do, cogently, I allow for differentials.
- There are no rules or regulations about time limits so they tend to be applied arbitrarily:
I am unaware that any of my time limits applied in the 100+ civil jury trials over which I have presided have been appealed and, hopefully, that is because I try to be scrupulously fair and sensitive to any objections made at the pretrial conference.
- The increased application of trial time limits represents an ill-advised transfer of power from advocate to adjudicator and from jury to judge:
I agree with Prof. Engstrom that the trial judge should not have complete control over the “pace, content and character of the litigation” but that judge certainly does have a duty not to let those factors get out of control or adversely affect the jury to which time is of the essence. Ultimately, in my humble opinion, discretion on how long a trial should last is better left in the hands of neutral judges rather than zealous advocates.
- The imposition of time limits may “spring from the view of jury trial as a mistake”, i.e., cases should settle before trials which are expensive and wasteful, and if they don’t, the lawyers should be constrained:
I could not disagree more with this proposition and say, to the contrary, that my motivation for time limits is the opposite: it is to preserve the sanctity of jury trials which are the best way devised in the history of humankind to settle disputes. Jury trials are made better, crisper and more palatable to jurors if there are time limits.
- Time limits should not be imposed “routinely” or be used excessively or indiscriminately:
I certainly agree that setting excessive and/or indiscriminate time limits is out of order and I am unaware of any federal judge who does that, but I do “routinely” impose time limits. Lawyers who frequent my session are well aware of that and I think have come to understand and respect my reasons for doing so. It is a net benefit to our judicial system.
It would be unfair to suggest that, by concentrating on her objections, Prof. Engstrom is altogether opposed to time limits in civil jury trials. Her note presents a balanced review of the practice and I agree with many of her misgivings. It is just that, on balance, I come down in favor of time limits for a few more compelling reasons:
1. Time limits do, indeed, “empower lawyers … to decide in an ordered and organized way what should stay and what should go without repeated judicial interference” 106 Georgetown Law Jour., 964.
2. “Imposing firm limits on the length of a trial is one of the most important ways a court can assure a just, speedy and inexpensive determination.” Tersigni Wyeth-Ayerst Pharm., Inc. No. 11-cv-10466, 2014 WL 793983 at *1 (D. Mass. Feb. 28, 2014)(Stearns, J.).
3. The ability to be able to predict the length of the jury trial and to stick to that prediction is extremely valuable in gaining and keeping the good will of serving jurors.
4. The preservation of jury trials depends upon the availability of willing jurors which may well be directly proportional to the amount of time we demand of jurors to perform their civic duties.
Ultimately, time limitations in jury trials not only save everybody time but also limit expense for the parties and encourage (I would argue ensure) more efficient and effective jury trials. That is my objective and perhaps time limits may have the added advantage of promoting the preservation of the jury trial itself which is important because, as they say, JURY MATTERS!
The Honorable Nathaniel Gorton is one of our judicial advisors.