American Bar Association Section Annual Conference - Section of Litigation May 5, 2017

American Bar Association Section Annual Conference - Section of Litigation May 5, 2017 A Brief History of Time Limits in Civil Jury Trials By Doris Cheng and Christine Nowland 1 Codification of Time Limits in Civil Jury Trials The concept of time limitations for jury trials had been informally applied well before it was formally codified in the Federal Rules of Civil Procedure in 1993. Specifically, Rule 16(c)(2)(O) of the Federal Rules of Civil Procedure was introduced to permit trial judges to establish time limits for the presentation of evidence by court order at the pretrial conference. 2 This subsection states: At any pretrial conference, the court may consider and take appropriate action on the following matters. Establishing a reasonable limit on the time allowed to present evidence. The 1993 amendment was proposed against the backdrop of efforts to shorten civil trials in federal courts. At that time, six District Courts in Delaware, Illinois, Massachusetts, Texas and Wisconsin explicitly authorized trial judges to impose time limits as part of their Civil Justice Reform Act of 1990. 3 The Advisory Committee of the Federal Rules of Civil Procedure stated that the amendment supplements the power of the court to limit the extent of evidence under Rules 403 and 611(a) of the Federal Rules of Evidence. It further instructed that time limits must be reasonable under the circumstances, and ordinarily the court should impose them only after receiving appropriate submissions from the parties outlining the nature of the testimony expected to be presented through various witnesses, and the expected duration of direct and cross examination. 4 The authority to restrict trial times is not limited to federal cases; it has been imputed to most state courts as well. 5 On the one hand, limiting the presentation of evidence in civil cases appeared to give short shrift to civil jury trials. In the decade preceding the 1993 amendment to Rule 16, the number of jury trial days per judgment across the country steadily declined from roughly 1

83 days to 52 days. 6 Possible explanations for the dwindling civil jury trial included the increasing pressure from the criminal docket and the increasing pre-trial management responsibilities related to complex civil cases. 7 The 1983 amendments to Rule 16 and 26 fundamentally changed the role of federal judges in civil litigation from passive umpire to managerial activists, by requiring judges to make scheduling and case management an express goal of the pretrial procedure. 8 On the other hand, time limitations have incentivized trial lawyers to proceed to jury trial. As jury trials have become more and more expensive and time consuming, many parties have found it more economically prudent to settle or arbitrate, rather than try, cases. The Administrative Office of the U.S. Courts maintains statistics about the number of filings and how cases are disposed. The Administrative Office report shows that over the past five years, 285,848 (on average) civil cases have been per year. 9 But less than one percent of those cases are disposed of by trial. In 2016, there were 4,572 federal civil trials (of which 1758 were jury trials). In 2015, there were 4,734 federal civil trials (of which 1882 were jury trials). The American Board of Trial Advocates ( ABOTA ), an organization dedicated to preserving the Seventh Amendment right to trial by jury, recognized that settlement is not a reliable means of achieving justice because of the potentially narrow interests of those controlling the litigation. Trials serve to keep people accountable by taking away absolute power vested in any single ruler, and thus, a strong judicial branch requires a healthy jury trial option. In 2012, ABOTA resolved to support the concept of Expedited Jury Trials ( EJT ) because the number of civil cases in the United States actually tried to a jury is rapidly decreasing and that litigation costs and delays are a major contributor to the reduction in the number of civil jury trials. 10 The concept of the EJT was an outgrowth of the Short, Summary, and Expedited Civil Action Programs ( SSE Programs ), which derived from the general notion of time limitations (as codified in Rule 16) and specifically from alternative dispute resolution methods originating in the Northern District of Ohio in the 1970s. Today, the specific rules of SSE Programs vary from one jurisdiction to the next, and are referred to by several names, including summary jury trial, expedited jury trial, and short jury trial. 11 Almost all of the SSE Programs contain the following critical features: (1) the length of the trial is limited to one or two days; (2) the trial date is certain and fixed; (3) the entire litigation 2

process, not just the trial, is expedited; (4) the program encourages maximum evidentiary agreements and stipulations; and (5) the programs are either partially or wholly voluntary. 12 As of 2016, five federal districts and twenty-three states have adopted at least one SSE program. 13 Whether the case is subject to time limits tailored by a singly assigned judge or crafted by an SSE program, trial lawyers will have to perfect the art of brevity. Origins of the SSE Programs U.S. District Court Judge Thomas Lambros (ret.) (U.S. District Court Cleveland, Ohio) is credited with the original idea for a dispute resolution movement that retained the important role of the juror as finder of fact. 14 He first implemented a summary jury trial in the late 1970s as a settlement tool to resolve the parties respective claims that each could do better than the other at trial. 15 He broke through the stalemate by conducting a live demonstration that showed how a jury would respond to their dispute. The procedure was essentially an abbreviated non-binding jury trial before a six-person jury selected from a ten-person panel. 16 The success of the Summary Jury Trial is rooted in the age old jurisprudential concept of trial by jury. Judge Lambros explained: It is this concept, the expression of opinion by a jury of peers, which has molded our judicial system and which permits the parties to believe that their story has been told, and a decision reached. 17 From 1980 to 1984, the Northern District of Ohio selected 88 cases for summary jury trials. 18 Almost half of the chosen cases settled before the summary jury trial. Ninetytwo percent (92%) settled after the summary jury trial. 19 Judge Lambros estimated that the summary jury trials produced actual cost savings of $73,702. This was based upon average cost of $43 per day for a petit juror in the Northern District of Ohio in 1983. 20 After Judge Lambros introduced the Summary Jury Trial, many state courts and a few federal districts implemented variations of Lambros procedure to improve civil case management. As of 1984, Judge Lambros reported that this method was being implemented in certain District Courts in Montana, Massachusetts, Pennsylvania, Oklahoma, Michigan, and Colorado. Additionally, courts from California to Florida were inquiring about the procedure. 21 3

State and Federal Timed Jury Trials Today In all federal civil cases, time limitations will be determined by the trial judge. Consistent with the Advisory Committee Comments in Rule 16, the trial judge will evaluate the number of witnesses, nature of the testimony expected to be presented through each witness, and the expected duration of the examinations. A time frame can be reasonably custom tailored to the case. The trial judge has authority to add or subtract time as the case. The SSE Programs have less flexibility and are non-appealable, and so, case selection for these programs is critical. Cases that are most suitable for SSE Programs have the following characteristics: (1) single or limited issues; (2) many facts are undisputed; (3) live expert testimony is not pivotal; (4) limited number of witnesses; (5) limited damages or limited recoverability of damages (e.g. due to limited insurance coverage or viability of party). Other considerations that make the SSE Program attractive include unavailability of a party during trial, and the need for a certain trial commencement date. A. Federal SSE Programs Although summary jury trial procedures originated in federal court, as of July 2016 only five federal districts have implemented an SSE program. 22 The programs adopted by the Northern District of California, the District of Minnesota, the District of Nevada, the Western District of Pennsylvania, and the Western District of Washington are all voluntary, and most are binding with limited grounds for appeal. The Northern District of California s program, called the Expedited Trial Procedure, was enacted in 2011. Like most other SSE programs, the Northern District s program limits discovery and trial length, and ensures an expedited trial date. Because participation in the program is voluntary, parties must execute an Agreement for Expedited Trial and Request for Approval. Pretrial conferences shall be held no later than 150 days after the agreement, and trial is to be held no later than six months after the agreement is approved by the court. Absent agreement between the parties, each side s discovery is limited to ten interrogatories, ten requests for production, ten requests for admission, fifteen hours of deposition, and one expert. The case may be tried to a judge or a jury. Juries will consist of six jurors which may be reduced to five should a juror become unable to serve. The judge 4

conducts voir dire and sets time limits for openings and closings, and each side is allowed three hours to present its case. B. California s Expedited Jury Trial Program California State Courts enacted the Expedited Jury Trials Act in January of 2011. 23 The California courts characterize the Expedited Jury Trial as an alternative, streamlined method for handling civil actions to promote the speedy and economic resolution of cases and to conserve judicial resources. 24 The Act requires that the parties waive all rights to appeal and to move for direct verdict or make any post-trial motions. 25 California has both, a mandatory expedited jury trial program (MEJT) and a voluntary expedited jury trial program (VEJT). Limited jurisdiction civil cases are subject to MEJT, although parties may opt out under certain circumstances. There are specific rules for MEJT, which can be found at Cal. Code of Civ. Proc. 630.20 630.30 and Cal. Rule of Court 3.1546. Specific rules for VEJT are found at Cal. Code of Civ. Proc. 603.01 630.12 and Cal. Rule of Court 3.1457 and 3.1458. Parties may follow existing discovery rules and procedure or may modify them by joint stipulation. Pretrial and supplemental evidence exchanges are subject to time constraints. In the VEJT, each party has up to five hours in which to complete voir dire and to present its case. 26 The jury shall be composed of eight jurors with no alternates, unless the parties agreed to fewer jurors. Each side has three preemptory challenges; if there are more than two parties in a case and more than two sides, as determined by the court, the parties may request one additional peremptory challenge each. 27 A vote of six of the eight jurors is required for a verdict, and the verdict is binding without any right of appeal or post-verdict motions. 28 In the MEJT, the jury shall be composed of eight jurors and one alternate, unless the parties agree to fewer jurors. 29 Each side has four peremptory challenges, unless the court permits additional challenge in cases with more than two sides. 30 The trial proceeds before eight jurors, and verdict requires a three-fourths agreement. 31 The presiding judge is responsible for assigning a judicial officer. The Court may assign a civil court judge or a temporary judge to conduct the expedited trial. The trial length is limited to five hours per side, including voir dire. MEJT verdicts are appealable subject to any high/low agreements, 5

whereas the right to bring appeal or post-trial motions on VEJT verdicts is waived except on limited grounds. C. Other States Approaches to SSE Programs True to Judge Lambros s original vision, SSE programs vary greatly across the country, and none implement identical procedures. While California and New York characterize their programs as streamlined jury trials, the programs in Arizona s Maricopa County, Indiana, and Nevada are explicitly affiliated with the states ADR programs. See attached Exhibit A for a comparison chart of these six Summary Jury Trial Programs. 32 Another element that differs widely among SSE programs is the presiding judicial officer. Nevada s ADR commissioner assigns a judge pro tempore. Maricopa County also assigns a judge pro tempore. Under North Carolina and South Carolina s programs, the presiding officer is a referee or Special Hearing Officer selected by the parties. Multnomah County Oregon assigns expedited jury trials to circuit court judges. Other states set limitations unique to all other current SSE programs. Nevada caps attorneys fees at $3,000 and expert witness fee recovery at $500. Indiana limits jury deliberation time. Finally, most jurisdictions discourage or prohibit live witnesses. New Hampshire, North Carolina, Ohio, Pennsylvania, and Tennessee prohibit direct testimony, requiring evidence to be presented through the attorneys. Oregon s program, on the other hand, focuses on expediting pretrial procedures and does not limit trial length (though parties are encouraged to limit live witness testimony). Tips for Managing Time 1. Be sure the pre-trial order specifies how time is charged to each party for objections or sidebars. One court held that time taken to argue all objections made by a party which are overruled by the Court shall be deducted from the objecting party s time. 33 Alternatively, the court may count the time for objections toward the party offering the evidence. In that circumstance, a party may make numerous objections to thwart the available time allotted to the opposing party. But, the court has inherent power to control and punish gamesmanship during trial. 34 6

2. Do not make speaking objections. As a practical matter, avoid any conduct that diminishes your ability to present evidence in support of your theme and theory. 3. Presumably, the court or the clerk will keep track of the time consumed by each party. Have someone on your team dedicated to this task to verify timing. 4. Pre-mark as many exhibits as possible. 5. Be cooperative with opposing counsel. Stipulate to the authenticity and admissibility of exhibits where there is no dispute. Stipulate to facts where there is no dispute. Do not create unnecessary disputes about the admissibility of evidence. 6. Create a detailed outline of each witness examination so that you remain on time. Resist the urge to repeat testimony that has been or will be sufficiently covered by another witness. 7. Organize citations of all critical statements or deposition testimony of witnesses so that you are always able to locate important impeachment / inconsistent outof-court testimony within 15 seconds or less. If inconsistent information did not make it on your list of critical testimony, then it is likely not significant enough for impeachment. 8. Use exhibits and demonstrative aids during opening statement and closing argument. Pictures are worth a thousand words. Simple, clean and uncluttered visual aids work best. This will shorten the amount of time spent talking about any issue or series of events. 9. Use juror questionnaires. This is encouraged in the California Expedited Jury Trials Act. 10. Consider using a survey-style set of questions for voir dire. Determine the worst characteristics of your potentially worst juror. What are the traits that make you most ready to eject the juror? Fashion polling questions that will elicit those characteristics. For instance, below is an exemplar of seven questions posed to each prospective juror in a product liability case: (1) Do you believe: a. There are too many lawsuits: Yes Maybe No b. Jury awards are too high: Yes Maybe No 7

Side A c. People are too ready to sue: Yes Maybe No d. Lawsuits are costing us all too much money? Yes Maybe No (2) Do you think the monies awarded by jurors today are (choose one): Excessive Much too large Too large About right (3) People have different general beliefs about big companies. For each question below please state whether you lean towards Side A or Side B regarding product safety. Companies do an excellent job in general Companies mostly behave responsibly and ethically I tend to trust big companies Side B Companies need to pay more attention to safety Companies too often put profits before people I tend to distrust big companies (4) At the start of this trial, would you find it difficult if not virtually impossible to believe that a medical device company would knowingly put an unreasonably dangerous device on the market? (5) Do you consider yourself to be: a. Very conservative b. Conservative c. Middle of the road d. Liberal (6) Do you have any objections to a punitive damage type of monetary award, if supported by the evidence? (7) Do any of your life experiences or opinions cause you to start off leaning even slightly in favor of the company being sued? (If yes, which life experience or opinion?) 8

9 Exhibit A

ENDNOTES 1 Doris Cheng is a shareholder with the law firm of Walkup Melodia Kelly & Schoenberger. Christine Knowland is currently attending UC Hastings College of Law. 2 FED. R. CIV. PROC. 16, Advisory Committee Notes, 1993 Amendment. 3 Patrick E. Longan, The Shot Clock Comes to Trial: Time Limits for Federal Civil Trials, 35 Ariz. L. Rev. 663, 664 (1993). 4 FED. R. CIV. PROC. 16, Advisory Committee Notes, 1993 Amendment. 5 See California Crane Sch., Inc. v. Nat l Comm n for Certification of Crane Operators, 171 Cal. Rptr. 3d 752, 760 (Cal. Ct. Appl. 2014) ( [I]t is clearly within the power of the court to impose time limits before the trial commences. ); See also Sneberger v. Morrison, 776 S.E.2d 156, 164 (W. Va. 2015) (holding the Federal Rules of Procedure inform the West Virginia Rules of Procedure and therefore permit judges to set time limits on trials). 6 Longan, supra, 35 Ariz. L. Rev. 663, 670-671. 7 Id. 8 FED. R. CIV. PROC. 16 Advisory Committee Notes, 1983 Amendments; Longan, supra, 35 Ariz. L. Rev. at 677-678. 9 2016 Judicial Business of the United States Courts, U.S. District Courts, Table 4. 10 American Board of Trial Advocates, Resolution #44: Expedited Jury Trials (2012). 11 Paula Hannaford-Agor and Nicole L. Waters, The Evolution of the Summary Jury Trial: A Flexible Tool to Meet a Variety of Needs, in Future Trends in State Courts 2012, 107 (2012). 12 National Center for State Courts, Civil Action, Vol. 6, No. 1, 3-4 (2007). 13 A Summary of the Short, Summary, and Expedited Civil Action Programs Around the Country, by the Institute for Advancement of the American Legal System (updated Jul. 15, 2016). 14 Hannaford-Agor and Waters, supra, at 107. 15 Id. 16 Id. 17 103 F.R.D. 461, 468 (1984) 18 Id. at 472-473. 19 Id. 20 Id. at 474. 21 Id. at 475-476. 22 A Summary of the Short, Summary, and Expedited Civil Action Programs Around the Country, by the Institute for Advancement of the American Legal System (updated Jul. 15, 2016) 23 2010 Cal. Stat. 3660 (codified at Cal. Civ. Proc. Code 630.01-.12). 24 Expedited Jury Trials, available at http://www.courts.ca.gov/12774.htm. 25 CCP 630.03(e)(2)(A). 26 CCP 630.03(e)(2)(B). 27 CCP 630.04. 28 CCP 630.07 630.09. 29 CCP 630.23(b). 30 CCP 630.23(c) 31 CCP 630.26 32 Hannaford-Agor and Waters, supra, at 108. 33 United States v. Hardage, 750 F. Supp. 1460, 1528 (W.D. Okla. 1990). 34 Id. at 1527 (the judge warned attorneys ahead of time that if one side used dilatory tactics the court will deduct time allotted to one side and award it to the other). 10