Heyl Royster

 


Heyl Royster

 

Practice Pointer

1/11/13

New Supreme Court Rule Will Allow Jurors to Submit Written Questions to Designated Witnesses in Civil Trials

Effective July 1, 2012, new Illinois Supreme Court Rule 243 will allow a trial judge in a civil case the discretion to decide if the jurors should be allowed to submit written questions to witnesses after all counsel have finished their examinations.

As written, the new rule does not require that jurors be allowed to submit written questions, but this option is discretionary to the trial judge and can be initiated at any time during a civil trial. The option can also be terminated at any time by the trial judge. This option is not available in a criminal trial.

When this option is permitted, the trial court will decide at the conclusion of each witness' examination, whether it is appropriate for the jury to submit questions as to that particular witness. Thus, a trial court may allow juror questions to be submitted to one witness and not another. If the court allows juror questions, then again at the conclusion of all examinations by counsel, the trial judge will ask the jurors if anyone has any further questions. If there is a response from the jurors that some questions are requested, then the jurors are told to put them in writing, to be collected by the bailiff and then presented to the judge. To preserve the record, each question will be marked as an exhibit. It is specifically required that the jurors will not have any discussion regarding these questions. Any such observed discussions should be brought to the court's attention as soon as practical.

Once the written questions have been collected and marked, the new rule requires that all counsel be given an opportunity to read the questions outside the presence of the jury and have an opportunity to object on the record. The trial court will rule on any objections and decide whether each question will be excluded, read to the witness or read after some modification. Once these matters outside the presence of the jury are decided, the question, if allowed, will be read to the witness, but only after the trial court expresses a required instruction to the witness that he or she answer only the question presented and not exceed the scope of the question. The rule does not dictate whether this cautionary instruction to the witness be done in or outside the presence of the jury, but the better practice will have the court do so outside the jury's presence.

The court, not counsel, will read the question and once there is a response, all counsel shall be given an opportunity to ask follow-up questions as long as these new questions are limited to the scope of the new testimony. The rule does not dictate any limitations on the number of "rounds" allowed to counsel for additional questions nor what to do if new aspects of prior testimony or new evidence altogether is admitted as part of the witness' new responses. The rule anticipates "new testimony" but does not resolve the issue of what to do if prior witnesses now need to be brought back for additional evidence in light of some new response.

The new rule also does not require nor suggest that counsel be allowed to confer with a witness before any such juror question is asked. Thus, a defendant may not be able to confer with his own counsel, an expert may not be able to confer and strategize with the attorney who prepared and presented him or her and a confused witness may not be able to ask their own questions as to what this new procedure is all about.

It is anticipated that some submitted questions will not be read at all and to avoid any hurt feelings or confusion by jurors, the new rule does require the trial judge to advise the jurors before or during the course of the trial that they should not be concerned with the reason why a question was modified or not read as the court needs to decide those issues based on the rules of evidence which govern each case.

Many of the details on how this new procedure is to be handled by trial judges are not specified in the new rule, so as to allow each judge some discretion on deciding how best to handle the situation in each case and in each court. If a party decides to challenge a court's handling of a juror's question on appeal, it will need to be shown that the court abused its discretion. This is generally a very high hurdle as an abuse of discretion occurs only when no reasonable person would take the position adopted by the trial court.

Although the proponents of the rule argue that it will improve juror comprehension, many are convinced that the new opportunity for juror questions will only benefit the ill-prepared attorney and the ineffective witness.

Defense counsel will need to be cautious and ready to respond with an objection that a potential juror written question is or may be beyond the scope of the plaintiff counsel's direct examination. It should be argued that if the defendants are not able to exceed the scope of direct examination, then why should a juror be allowed to do so? Defense counsel should also be ready to review and possibly repeat any effective cross-examination which ended an ineffective opposing expert's testimony. This new opportunity for a jury question should not be allowed to destroy any crescendo or dramatic conclusion to a successful cross-examination of an opposing expert, which gave a definite advantage to the defendant. No juror should be allowed to submit a written question which would effectively rehabilitate the opinions and presentation of a weak or confusing plaintiff's expert. Defense counsel should also be ready to object if a juror's question attempts to bail out a plaintiff or a plaintiff's witness where their counsel simply forgot to ask a question or explore a particular area of the evidence.

Also, it may become evident in a juror's submitted question that the particular juror has been discussing the case outside the courtroom or exploring additional information through internet sources. If this is obvious or suggested, then the court, on its own motion, should interrogate that individual juror outside of the presence of the other jurors; and if that does not occur, then defense counsel must make that request and preserve the record in order to seek that remedy. Other possible juror questions may reflect that a particular juror has some unique knowledge or special expertise which was not disclosed during voir dire. If the appropriate pre-trial questionnaire was filled out by that juror with this information requested but not provided, that is an additional situation where the court, even on its own motion, should interview that juror, and again that process should be done outside the presence of the other jurors.

It is anticipated then while this new rule is in its infancy in Illinois that trial judges may not be willing to employ this practice unless all counsel agree in advance. Although the court can do so without any agreement from counsel, there will be a hesitancy to break new ground and needlessly inject possible error into a trial.

Illinois Supreme Court Chief Justice Thomas Kilbride noted that this rule did go to a Public Hearing in May 2011 and that "[B]ased on the comments of those who have used or seen the procedure at trials, such a rule enhances juror engagement, juror comprehension and attention to the proceeding and gives jurors a better appreciation for our system of justice. The rule is written so that its implementation rests with the discretion of the trial judge with safeguards so that the testimony it elicits complies with the rules of evidence."

This procedure is not unique to Illinois state courts as the majority of all state courts and all of the federal courts permit some form of opportunity for jurors to submit written questions for responses by witnesses at civil trials.

Edward M. Wagner has just completed his third three-year term on the Illinois Supreme Court Rules Committee and was an active member in 2011 when this new rule was proposed, revised and the subject of significant comment at the Public Hearing on May 20, 2011.