Thinking outside the box: a review of innovations in trial practice.

• Author: Kenney, Chris
• Position: Conning the Newsletters

This article originally appeared in the January 2016 Trial Techniques and Tactics Committee newsletter.

TRIAL practice in state and federal court has evolved to include innovative techniques to enhance advocacy and assist the jury in understanding the evidence. Jurors are no longer passive observers to the trial process. In fact, in state and federal court jurors frequently are permitted to question witnesses and begin discussing the evidence from the moment the first exhibit is introduced or the first witness testifies.

1. Jurors' "Examination" of Witnesses at Trial

   The Supreme Judicial Court of Massachusetts has joined the growing number of states that have approved the use of juror questioning, subject to some restrictions. Trial judges are generally given discretion about whether to permit jury questioning and vary greatly in the procedure by which the jurors' questions are posed to witnesses at trial. Questions from jurors pose the unhealthy prospect of trial counsel being forced to object to a juror's question. Many trial judges guard against the prejudicial effect of such an objection by reviewing with counsel at side bar the juror's proposed questions before posing them to the witnesses. If one or more attorneys object to the question, the objection can be made in the anonymous safe harbor of sidebar far outside the juror's hearing. Counsel should ask the judge at the pre-trial conference about their particular practice regarding juror questioning, and ask for confirmation that questions will first be reviewed with counsel at sidebar and whether any objection to the question will preclude the question or simply be ruled on by the judge at sidebar. Counsel should also confirm whether questions from jurors posed at the conclusion of a witness's examination will reopen re-direct and recross examination of the witness depending on the testimony elicited by the juror's question.

2. Interim Commentary

   Some of the more innovative trial judges are allowing counsel to make "interim commentary" to the jury during trial. This technique is a hybrid of opening statement and closing argument, and is a device to be used by counsel during trial to explain or advocate interpretation of evidence. The trial judge may give each counsel a limited bank of time for interim commentary during the trial (e.g. seven to ten minutes for each party), which is to be used sparingly. It is most effectively used just before commencing cross examination where you can...