Trial
Juror
notes and notebooks
Other chapters will discuss trial of commercial cases in federal court.[1] This section and the following sections consist of suggestions for making the trial go faster and smoother.
“To expect six or twelve individuals sitting on a jury to absorb weeks or months of testimony on an unfamiliar subject, retrieve it from memory, analyze it, and somehow reach the correct decision is to adopt a method of decision-making fraught with unreliability.”[2] Allowing jurors to take notes during trial and providing each with a notebook containing instructions, photographs of witnesses, time lines, glossaries, key exhibits, and the like decrease lawyers’ inclination to duplicate evidence. A shorter trial results.
Trial time limits
“One of the most direct and important ways [the judge’s] leadership can be exercised in the course of the final pretrial conference is in discussions of scheduling of trial events and the actual trial time likely to be required by the case.”[3] Indeed, few things encourage waste of judge and jury time more than letting lawyers fail to prepare exhaustively for trial and, once the trial starts, allowing them to take as long as they want to put on their cases.
Usually, by the time of trial, one side or the other
concludes it has the weaker case and will try to make the proceedings cumbersome,
long, and confusing. To use a familiar
but non-commercial and non-federal example, the civil trial of wrongful death
claims against O.J. Simpson lasted a little over three months (from October 23,
1996 to February 4, 1997). The criminal
trial, by contrast, consumed more than a year (from September 26, 1994 to
October 2, 1995). Despite important
differences between the civil and criminal trials, both involved the exact same
incidents. Did the quality of justice
suffer because the civil trial didn’t last another nine months? Were 101 witnesses and 41 trial days not
enough for the civil jury to reach a just verdict?
As the Simpson example shows, trial efficiency requires the court to impose time limits. And the court must do it as early as possible, with appropriate input from the lawyers. Under Rule 16(c)(15), the court may enter at any pretrial conference “an order establishing a reasonable limit on the time allowed for presenting evidence….”[4] The order should generally state the limits in the total days or hours each side may have to put on its case, from voir dire through final summation; or the order may divide the available time for each phase of the trial (e.g., voir dire, opening statements, examination of witnesses, and closing statements).[5] Lawyers usually can give ballpark estimates of the trial-hours that the case requires even at the beginning. The court always has discretion to loosen the restrictions as justice requires.
Bifurcation
Fed. R. Civ. P. 42(b) authorizes a court to order separate trials
of any claims or issues “when separate trials will be conducive to expedition
and economy”.[6] Bifurcating a trial
into separate pieces may promote expedition and economy if the first piece will
resolve a distinct issue or set of issues and potentially avoid the second
piece. In American Trim, L.L.C. v. Oracle Corp., for instance, the court of
appeals affirmed the bifurcation of the trial of American Trim’s
misrepresentation claims from trial of tort damages and contract issues. The court agreed with the trial judge that
the misrepresentation claims focused on the formation of a software contract,
that the damages-and-contract issues related to events post-dating formation,
and that trial of the misrepresentation claims up front therefore would avoid
trial either of tort damages (if American Trim lost on the misrepresentation
claims) or of contract issues (if American Trim prevailed on them and had the
contract set aside).[7] Other courts have bifurcated for trial
purposes a laches defense from a counterclaim for
willful copyright infringement,[8]
a fraud issue from RICO claims alleging the fraud as a predicate act,[9]
and liability for patent infringement from damages for it.[10]
Motions in limine
Rulings on motions in limine, usually at the final pretrial conference, often pare the evidence that the parties may submit at trial.[11] Limine motions may raise any objection to admission of evidence—including privilege, hearsay, lack of foundation, failure to satisfy Daubert requirements for expert evidence, non-compliance with discovery rules and pretrial orders, and undue prejudice or excessive repetition. Large swaths of a case may disappear during the in-limine process. Obvious savings in time result.
The granting of a motion in limine does not exclude evidence.[12] It instead requires the party seeking to introduce the evidence to ask for a decision on the admissibility question before mentioning the proof in front of the jury. One who loses an important in-limine ruling should redouble efforts to show admissibility during the trial itself. The ruling doesn’t bind the judge, who may reach a contrary conclusion after hearing other evidence at trial.
Depositions
Requiring parties to exchange designations of deposition testimony before trial will avoid delays in trying the case. Not only must the parties designate the testimony they expect to present in their cases in chief; they must also make cross-designations in response to the opposing side’s designations, state objections to specific questions and answers, and obtain rulings on the objections before reading or playing a video of the testimony before the jury.
Exhibits
Parties should have numbered all deposition exhibits sequentially during discovery. That makes numbering them for trial easy and presentation of testimony about the exhibits—especially deposition testimony—less confusing.
Courts should also encourage or require parties to present a joint exhibit list for trial, to justify objections to the opposing party’s exhibits in advance of trial, and to stipulate to the authenticity of exhibits. With respect to demonstrative exhibits, judicial flexibility will allow counsel to adapt their presentation to the development of evidence at trial. A witness may testify in person about events on certain dates, for example. The trial team may summarize the testimony on a time-line that shows the sequence of key events. If the testimony related to production of widgets, say, the team may represent the testimony in a pie or bar chart. Or the team may choose to put a quote from the testimony on a poster-board to keep in front of the jury. Because of the need for this kind of flexibility, the court should require parties to disclose demonstrative exhibits to the opposing party before presenting them in court but should not require them to list demonstratives on their exhibit lists before trial.
Disclosure of witnesses
Scheduling orders typically set deadlines for parties to identify witnesses they expect to call to testify at trial.[13] They should also require the parties to differentiate between the witnesses (1) they probably will call and those they may call and (2) those they will call live and those they will call by deposition. The parties additionally need to disclose any difficulties they expect in subpoenaing particular witnesses or in scheduling them to testify, including the possible need to call a witness out of order to accommodate his schedule.
Finally, the court ought to direct the parties to tell each other, no later than a specific time before a party presents witnesses during trial, the names of the witnesses the party anticipates calling, the order in which it expects to call the witnesses, whether it will call each witness live or by deposition, and any changes in deposition excerpts it previously disclosed. These disclosures reduce surprise and allow the lawyers a reasonable opportunity to prepare for cross-examination of specific witnesses. They also provide time for editing excerpts from video depositions and alert the opposing party of the need to object to particular deposition testimony and ask the court for rulings on the objections. These precautions will allow for a smoother, faster, and more understandable presentation of testimony at trial.
Jury charge and questions
The parties should provide the court with their respective versions of the jury charge and questions necessary to the decision of the case. They should remain free to update and revise their proposals during the course of trial. These steps should shorten the time necessary for the charge conference following the close of evidence.
[1] See Chapter 33 “Trials”.
[2] Parker, Streamlining Complex Cases,
10 Rev. Litig. 547, 550
(1991).
[3] Civil Litigation Management Manual
84.
[4] Fed. R. Civ. P. 16(c)(15).
[5] E.g., General Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1507-11 (9th Cir. 1995) (affirming rulings that excluded evidence to enforce 56-hour per side time limit); Deus v. Allstate Ins. Co., 15 F.3d 506, 520 (5th Cir. 1994) (“In the management of its docket, the court has an inherent right to place reasonable limitations on the time allotted to any given trial.”), cert. denied, 513 U.S. 1014 (1994).
[6] Fed. R. Civ. P.
42(b). The rule also allows
separate trials “in furtherance of convenience or to avoid prejudice”.
[7] 383 F.3d 462, 473-75 (6th Cir. 2004); see Palace Exploration Co. v. Petroleum Development Co., 316 F.3d 1110, 11119 (10th Cir. 2003) (holding that district court properly bifurcated trial of claim for equitable rescission of contract from claim for breach of contract).
[8] Danjac LLC v. Sony Corp., 263 F.3d 942 961-64 (9th Cir. 2001),
[9] Conkling v. Turner, 18 F.3d 1285, 1293-95 (5th Cir. 1994).
[10] William Reber, LLC v. Samsung Electronics
America, Inc., 220 F.R.D. 533 (N.D.
[12] Nor does the filing of a motion in limine preserve error in the admission of evidence. The party opposing the evidence must object at the time of its admission.
[13] See Chapter 27 “Scheduling and Pretrial Conferences and Orders”.