Advisability and practical considerations of court-imposed time limits on trial.

• Author: Goldman, Andrew L.

With the ever-increasing number of docket filings, it is becoming more common for courts to impose time limits during trial. This should not be surprising. For decades circuit courts have imposed page limits on written briefs. The United States Supreme Court and virtually all federal and state appellate courts restrict the length of oral arguments. And now more than ever, trial courts are imposing time limits to speed up the pace of civil trials.

Though it can be challenging at times to narrow the scope of a complex case, trial lawyers who have participated in time-limited trials generally appreciate the value of being disciplined to streamline their presentation of evidence. Carefully planning who will testify, for how long, and on what subjects promotes efficiency for the courts, forces the lawyers to focus on the evidence that really matters, and helps to keep the attention of jurors on the most significant important witness testimony and documentary evidence.

1. Time Limitations in Practice

   The growing trend of imposing time limitations at trial is perhaps most evident in recent bellwether trials that have occurred in mass tort litigation. For example, the Honorable Eldon E. Fallon, a highly regarded judge in the United States District Court for the Eastern District of Louisiana utilized such techniques as the MDL judge in several pharmaceutical product liability mass torts including In re Propulsid Products Liability Litigation (MDL 1355) and In re Vioxx Products Liability Litigation (MDL 1657). (1) By the time trials started in the Vioxx MDL, the parties had taken hundreds of hours of deposition testimony, Merck had produced millions of pages of documents, and many legal and factual issues remained in dispute. Nevertheless, in each of the six MDL bellwether Vioxx trials, Judge Fallon gave each side a maximum of seven days to present their case. The six Vioxx bellwether trials were each tried in less than three weeks, resulting in one hung jury, four defense verdicts and one remittitur. The one Propulsid bellwether trial was tried in a total of eight days and resulted in a defense verdict. (2)

   At the outset of these bellwether trials, Judge Fallon emphasized to the jury and the lawyers that he appreciates and values the jury's time. He would not and did not tolerate short trial days. In the Vioxx trials, if the jurors were willing to work on Saturdays, he expected the lawyers and witnesses to do so as well. Judge Fallon required that cross-examination begin even if the direct ended late in the day. He insisted that the next witness had to be called after re-redirect regardless of how much time remained before the next-scheduled break or the trial day's end. Judge Fallon did not tolerate cumulative fact and expert testimony, and he properly enforced evidentiary rules such as necessary foundation before fact witnesses could be cross-examined on evidence such as internal company documents.

   Other MDL judges have utilized similar techniques in bellwether trials, often resulting in defense verdicts. (3)

   Judge Lynn B. Winmill of the United States District Court for Idaho allocated four months to the trial of a bellwether trial involving 4 of the 110 plaintiff groups in a mass tort products liability case filed against multiple defendants including the United States Bureau of Land Management and DuPont. This was after several years of discovery and the production of millions of pages of documents and hundreds of depositions. Following trial, the judge put the remainder of deposition discovery on a time allocation, which set forth the total time the parties could spend for all depositions to be taken, without addressing individual time limits, and allocated six months for the damages trials of all other plaintiffs. Both the discovery and trial time was allocated in minutes assigned by the court. The bellwether trial ended as determined by the court, as did the discovery, while the final trial settled just prior to trial.

   Judges outside the mass tort products liability context have also imposed time limits for trials. Last year, Judge Alvin K. Hellerstein of the United States District Court for the Southern District of New York announced his plan to impose a one-month time limit for trial in a wrongful death case filed by the family of Mark Bavis, a passenger on the second plane to hit the World Trade Center on September 11, 2001. (4) United Airlines and several other parties were defendants. Had the case not settled, each side would have had no more than 50 to 60 hours to present its evidence. The trial was to be timed in minutes, not days, much like a chess match with the clock ticking whenever a lawyer questions a witness or argues to the jury. As is often the case, lawyers for both sides argued that such a time limit was unrealistic for a case of that magnitude. Nevertheless, Judge Hellerstein fully intended to impose a strict time limit to avoid a protracted trial and to keep the jury focused. The court reportedly reasoned that "once the jury gets bored with your presentation, you've lost the significant power of persuasion."

2. Standards Supporting Time Limitation

   When imposing time limits at trial, federal district courts rely on various sources, including FED. R. EVID. Rule 611(a), which provides that:

   The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

   (1) Make those procedures effective for determining the truth;

   (2) Avoid wasting time; and

   (3) Protect witnesses from harassment or undue embarrassment. (5)

   State trial courts are afforded similar discretion under state or local procedure and/or evidence rules, or common law principles. (6)

   While there are numerous cases in which the appellate court has been critical of the time limits imposed by the trial court, no cases have been identified in which the trial court was actually reversed because of the time limits imposed. (7) The language used to support claims against time limits is dicta:

   Trepel's argument is impassioned but unpersuasive. Although Trepel cites dicta from three cases disfavoring time limits, see Monotype Corp. v. Int'l Typeface Corp., 43 F.3d 443, 451 (9th Cir. 1994); McKnight v. Gen. Motors Corp., 908 F.2d 104, 114-115 (7th Cir. 1990); and Flaminio v. Honda Motor Co., 733 F.2d 463, 473 (7th Cir. 1984), in none of these cases did the imposition of the time limit lead to a reversal. Similarly, we find no cause to reverse here. (8) Even those cases which have been critical of the trial court's actions have not reversed them. In Pierce v. County of Orange, for example, the court found that imposing rigid time limits did not constitute reversible error:

   Accordingly, we join the Seventh Circuit in disapproving rigid hour limits such as those initially suggested here...