25. Set and Enforce Time Limits for Trials

Given the benefits to the parties, jurors and the court system of trials that are as short as fairness permits, judges ought to be given express authority, by rule, to impose reasonable time limits on trials or portions of trials.

The setting of reasonable time limits for trials in appropriate cases is thought to have a number of benefits: the shorter the trial, the better for all participants, including jurors, and for parties awaiting trials in other cases; everyone, including jurors, benefits from greater predictability regarding the length of trial; and counsel may well prepare better and improve their presentations having limitations in mind.⁽¹⁾

After conferring with counsel, trial judges would do well to consider a pretrial direction or order imposing one or more of the following types of limitations:

1. Limitation on the total amount of time for the entire trial;
2. The amount of time each side will have to present its case;
3. Time limits on discrete portions of the trial, e.g., how long each side will be allowed for opening statements; and
4. Limitations on how--and how much--evidence may be presented.⁽²⁾

Existing rules appear to give trial judges the discretionary authority to impose these kinds of limitations.⁽³⁾ Nonetheless, the committee recommends that language be added to the appropriate rules in order to make explicit what is now only implicit. For example, language along the following lines should be added to Evidence Rule 611, Civil Rule 16 and Criminal Rule 16.3:

The court may impose reasonable time limits on the trial proceedings or portions thereof.

26. Guidelines for Severance in Complex Cases are Needed

Existing authority to sever parties or claims for trial purposes ought to be utilized more often, at least in especially lengthy trials or trials in complex cases, to keep trial time to a minimum and to reduce juror overload and confusion. The Supreme Court should promulgate guidelines for severance for the benefit of trial judges.

Severance of multiple claims or counts, parties or issues for purposes of trial before the same jury or two or more juries could well shorten the overall time needed for trial and contribute to jury comprehension.

Clear authority exists for severance of parties, claims and defenses for trial purposes.⁽⁴⁾ However, the committee concluded that severance for trial ought to be considered in more cases, if only for purposes of reducing time and confusion. For example, many complex, multi-party criminal cases are candidates for severance of counts and/or defendants. On the civil side the trial court should at least consider bifurcation of liability and damages in more cases than is presently done.

The Supreme Court could facilitate this kind of intelligent trial management by trial judges by promulgating guidelines for severance of parties and issues, either in the form of official comments to existing rules, additions to the Uniform Rules of Procedure for the Superior Court or as an addition to the Arizona Jury Management Standards.⁽⁵⁾

27. Jury Trial Time Should be Maximized

Jurors and attorneys should be surveyed to determine whether there is a preference for trials lasting full days (6 hours) and full weeks (5 days) or trials lasting only half days (3 hours) and 4 days a week. A study should be undertaken of the relative advantages and disadvantages of various options for hours of trial.

In Maricopa County, at least, only three to four hours per day are devoted to jury trials, especially in the criminal divisions. Since most judges reserve at least one day for motions and hearings (Rule 32 matters, suppression hearings and the like), many juries in criminal cases are utilized only twelve to fourteen hours per week. On the face of it, a serious question exists whether we are frittering away juror time and unduly extending the length of trials.

On the other hand, many jurors react positively to the "short day-short week" format, as it leaves them free to tend to their personal and family concerns and to their employment. Others are critical of the court due to the perceived waste of time. Another concern is whether the average juror's attention span and ability to comprehend trial information is exceeded by trial proceedings longer than three or four hours a day. Trial counsel may be divided over the wisdom of substantially longer trial days, given their needs to prepare in advance for each trial session and to tend to other cases. Longer trial days may test attorneys' endurance, resulting in possible inefficiencies. Lastly, judges and their staffs almost always have other cases to tend to each day.

Rather than propose solutions to this dilemma by recommending changes in practice involving trial hours and organization of judges' calendars, the committee suggests that additional information be gathered and that pilot programs be conducted so that, whatever changes are made, the preferences and needs of jurors and lawyers can be considered.

With respect to these issues, then, the committee recommends as follows:

1. That a study be commissioned to attempt to determine whether jurors and attorneys tend to prefer the half-day or the full-day trial option.
2. That the administrative feasibility of assigning jurors and attorneys to half-day or full-day trials, based on their preferences, be investigated.
3. That a comparative study of the advantages and disadvantages of the following options for daily trial times be undertaken:

(1) half-day (3 hours)⁽⁶⁾
(2) full-day (5 to 6 hours)
(3) 10:30 a.m. - 4:30 p.m. (4 1/2 hours)
(4) 8:30 a.m. - 1:30 p.m. (5 hours)

Such a study could involve selected quadrants or divisions of the criminal courts in Maricopa and/or Pima counties.

The practice of utilizing "special assignment" judges for lengthy trials helps minimize the number of days needed for such trials. This wise use of judicial resources and jurors' time ought to be encouraged.

28. Trial Interruptions Should be Minimized

The conduct of a jury trial ought to take precedence over all other trial court business except emergencies. Trial judges should receive training in the effective use of specific trial management techniques that would reduce unnecessary disruption and delay. When in a jury trial, the judge should allow no more than one hour for lunch, absent special circumstances.

Among the major complaints of trial jurors is that there are too many unscheduled interruptions of the trial and that too many of them, as well as scheduled recesses, last too long. Acknowledging that some interruption and delay is unavoidable, it is felt that trial judges should be more vigilant in preventing unnecessarily frequent and lengthy trial interruptions and recesses.

To assist trial judges in minimizing interruptions and delay during jury trials, the committee recommends the following:

1. Standard 13 (Juror Use), of the Arizona Jury Management Standards, should be amended to add a declaration that jury trial time takes precedence over every other proceeding or activity except those of an emergency nature. A new subdivision of Standard 13 should read as follows:

(d) The conduct of jury trials takes precedence over all other proceedings except those of an emergency nature.

2. b. Trial judges should reduce the customary ninety-minute lunch break to one hour when involved in jury trials, except in special situations (e.g., monthly judges' meetings).
3. More trial judges ought to give more attention to specific jury trial management techniques that would assist in minimizing unnecessary disruption and delay. For example, judges should:

(1) Schedule anticipated matters to be heard outside the presence of the jury before or after scheduled trial hours;
(2) Discourage side-bar discussions during trial; and
(3) Impress upon counsel the importance of starting on time with the jury at the beginning of the trial day, following periodic recesses and at the end of the lunch break.

4. This subject, along with these and other techniques, should be included in a required course or class in jury trial management.

29. Juror Notebooks Should be Provided in Some Cases

In all lengthy trials and trials of complex cases jurors should be supplied with juror notebooks for the keeping of documents or information, e.g., juror notes; preliminary and, eventually, final instructions; lists of witness names (and possibly photos); copies of key exhibits; and, where helpful, a glossary of terms.

In especially lengthy trials and in trials of complex cases, the creation and use of multi-purpose juror notebooks are seen as aids to juror understanding and recall of the evidence.⁽⁷⁾

Among the contents suggested for juror notebooks are:

1. A copy of the preliminary jury instructions,
2. Jurors' notes,
3. Witnesses' names, including photographs and/or biographies of witnesses where helpful,
4. Copies of key documents and an ongoing index of all exhibits,
5. A glossary of technical terms, and
6. A copy of the court's final instructions.

While recognizing that these aids are not advisable for routine trials of short or moderate duration, jury notebooks would be of considerable value to jurors in trials of complex cases and for unusually long trials. Whether they are used in a given trial and decisions regarding the contents of the notebooks ought to be left to the discretion of the individual trial judge.

To clarify the judge's authority in this regard and in order to encourage the use of juror notebooks in appropriate cases, the committee recommends a modest addition of language to Civil Rule 47 and Criminal Rule 18.6:

In its discretion, the court may authorize the use of notebooks for jurors during trials to aid the jurors in performing their duties.

30. Expand Use of Preliminary Jury Instructions

Preliminary jury instructions should be expanded in scope to include elements of the charge or claim and any known defenses. They should be case-specific where possible and always in plain English. In complex or technical cases, definitions of terms and other information that would help orient the jury to the case should be included.

The committee strongly endorses the use of expanded preliminary jury instructions in both civil and criminal cases. Given before opening statements and the evidence, they ought to deal with more than procedural and housekeeping matters. Preliminary instructions should be both substantive and case-specific. At a minimum, the jury ought to be informed of what the plaintiff in a civil case must prove to win and what the State must prove before a defendant in a criminal case can be found guilty. In addition, definitions of technical terms and elements of the offenses or claims and anticipated defenses should be included. In technical or complex cases, the instructions could contain a glossary of terms or other information that would help orient the jury to the case. The language of the preliminary jury instructions ought to be case-specific wherever possible, identifying the parties by name and referring to the incident or transaction in specific, descriptive terms.

Research shows that telling the juror more, rather than less, in advance of the evidence assists the jurors in understanding and organizing the evidence as they hear it, improves their recall of evidence, reduces the chances that the jurors will apply the wrong rules to the evidence and increases juror satisfaction.⁽⁸⁾

Arizona's civil rules neither require nor forbid the giving of substantive preliminary instructions.⁽⁹⁾ Criminal Rule 18.6(c), on the other hand, appears to require something more than pro forma opening instructions. It reads:

Immediately after the jury is sworn, the court shall instruct the jury concerning its duties, its conduct, the order of proceedings and the elementary legal principles that will govern the proceeding.

To encourage greater use of substantive and case-specific preliminary jury instructions, the committee makes two recommendations:

1. That Civil Rules 39(b) or 51(a), or both, be amended to conform to Criminal Rule 18.6(c) (quoted above); and
2. That Standard 16(c)(i) of the Arizona Jury Management Standards be supplemented by adding the following language:

Preliminary jury instructions shall comply with applicable rules and should inform the jury of the legal rules applicable to any charge, claim and anticipated defense. Where necessary or helpful, a glossary of terms should also be provided.

For reasons stated elsewhere in this report,⁽¹⁰⁾ these instructions should be in plain English and copies should be provided to each juror and to counsel.

Some authorities have suggested case-specific orientations for juries in trials involving unusually complex or technical subjects.⁽¹¹⁾ Court-appointed experts could be called upon to give the jury helpful background, definitions of terms and other information necessary to an understanding of what is to come. However, most committee members expressed reservations about this procedure. Among other things, it was felt that too much time would be consumed in resolving objections by the parties to the proposed orientation and by the presentation itself. The direct and indirect costs of case-specific orientations were also of concern. Finally, some form of orientation could be incorporated into the preliminary jury instructions, the juror notebooks (e.g., a glossary of terms), or both.

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2. ²See Rule 26(b)(4)(D), Rules of Civil Procedure (each side restricted to one independent expert per issue).

3. ³See, e.g., Evidence Rules 403 and 611; Civil Rules 1 and 16; and Criminal Rules 1.2 and 16.3.

4. ⁴Civil Rules 20(b), 21 and 42(b) and Criminal Rule 13.4.

5. ⁵An example of severance guidelines can be found in United States v. Casamenta, 887 F.2d 1141 (2nd Cir. 1989).

6. ⁶Whether jury trials are conducted under the half-day or the full-day system also may affect the amount of juror pay that is appropriate.

7. ⁷ABA Litigation Section Report, Jury Comprehension in Complex Cases, 36-37 (1989).

8. ⁸E.g., ABA Litigation Section Report, Jury Comprehension in Complex Cases 614-17 (1989); Elwork, Sales & Alfini, Juridic Decisions: In Ignorance of the Law or in Light of It? 1 L. & Hum. Beh. 163 (1977).

9. ⁹See Rules 39(b) and 51(a).

10. ¹⁰Recommendation 39 (use of plain English in final instructions); Recommendation 43 (written copies of instructions for jurors).

11. ¹¹E.g., A. Austin, Complex Litigation Confronts the Jury System 18 (1984); Strawn & Munsterman, Helping Juries Handle Complex Cases, 65 Judicature 444, 446-47 (1982).