J. Thomas Marten
Senior U.S. District Judge, District of Kansas
Those lawyers who bring significant civil trial experience to the bench are frequently surprised by the difference in perspective the change in position makes. As lawyers, our goal is to get the best possible result for our clients. It means there are times we will be pushing the rules to the breaking point, falling back always on providing vigorous representation for a client. It often means trying to persuade a judge to adopt a position the judge may not feel comfortable taking, but being hopeful nonetheless.
On the other hand, as judges, the result of a case is of little consequence. We are much more interested in the process. If lawyers on all sides try a good case, the appropriate result obtains most of the time. There will be the occasional outlier, but given what information juries get, I have never disagreed with a jury. A close look will reveal a failure in the process. One party or another did not have the evidence appropriately organized for persuasion, or the jury selection process was ineffective, the arguments did not hold together, the judge fell down on his or her job, be it too restrictive or too loose, or bad instructions; somewhere or another something broke down.
Our focus should be on how to provide a jury with the most accurate and understandable set of facts possible, and to allow the jury to seek clarification when the presentations are not. Nothing else even comes close when it comes to trials.
Any judge who has presided over a bench trial knows there is an ebb and flow to the judge’s thinking during the trial. The one great advantage a judge has is the ability to say to the witness, “Wait a minute – how do you reconcile X with Y?” Surely jurors have the same experience, which is why juror questions make a great deal of sense. Yet there are times when questions are not immediately apparent, arising during jury deliberations. And when the court receives the question and discusses it with counsel, the only option typically available is to send a message back to the jury that it must use its collective memory to resolve the matter itself, however complex it may be.
What if the jury could discuss the evidence at any time during the trial when all jurors were together, as allowed in Arizona? And what if the jury could provide questions that arose from those discussions to the court, to share with counsel? The questions would signal to counsel areas of jury concern, perhaps of confusion, and allow the parties to make immediate adjustments to their trial strategy and presentations to address those matters.
In one complex bench trial many years ago, about four days into the trial, I began meeting with counsel at the end of the day to give them an overview as to how I saw the case at that moment. I made it clear to the lawyers that I was well aware that one witness could turn the case in an entirely different direction, while suggesting that it would be helpful to hear the best evidence plaintiff had in support of its claim for punitive damages. It put on that evidence the next day, and I told them at the end of the following day that it was not sufficient to support a claim for punitive damages. The course of the trial changed and resulted in an appropriate resolution.
If we are concerned about the disappearing civil jury trial, as much jury involvement as possible is one of the aspects of the trial we should be nurturing. Allowing jurors to not only ask questions before a witness is excused from the stand, but allowing jurors to submit questions which arise during their discussions over the course of the trial bodes well for more meaningful trial presentations and for well-informed, better-reasoned verdicts.