Starting next week, trial judges throughout the state will have the discretion to let jurors in civil trials submit written questions directed at witnesses.
While judges in several other states, as well as some in Cook County and the federal court system, have been doing this for years, it will be completely new to the majority of the state’s trial judges in Madison County, not to mention the lawyers appearing before them. This new trial option comes to Illinois as a result of Supreme Court Rule 243, which takes effect July 1.
“There will be a little bit of a learning curve for everybody,” said Greg Shevlin, an attorney at Cook, Ysursa, Bartholomew, Brauer & Shevlin in Belleville who serves as president of the Illinois Trial Lawyers Association.
“The people I have talked to up in the Chicago land area that have been through this before said they like it and it’s helpful. I also know there are some people who are afraid of it, but are maybe just resistant to change. I’ll be curious to see how it will work out.”
R. Howard Jump, a Chicago attorney who leads the Illinois Association of Defense Trial Counsel, also seems to possess a wait-and-see attitude toward the new rule.
“I think it might be helpful, but you won’t really know until you put this in effect and see how it plays out,” Jump said. “It’s like anything else with trial lawyers: if it benefits you at the end, you’ll like it and if it doesn’t, you won’t. I think jurors will like it and lawyers will have a love-hate relationship with it.”
Under the new rule, which was proposed in 2010 and adopted in April, judges will decide whether to give jurors in civil cases the opportunity to submit written questions after the attorneys question the witnesses.
If the judge determines questions from jurors are appropriate, a court bailiff will collect their questions and give them to the judge, who will mark them as exhibits. The rule then requires the judge to read the proposed questions to the attorneys outside of the presence of the jury and if any objections are made, decide whether to admit, modify or exclude the jurors’ questions.
The Supreme Court Rules Committee said in its comments that while Rule 243 lays out certain procedures that judges must follow, “it leaves other details to the trial judge’s discretion.” It notes that several other jurisdictions allow jurors to pose written questions to the court as a way “to improve juror comprehension, attention to the proceedings, and satisfaction with jury service.”
Chief Justice Thomas L. Kilbride said in April that the proposed rule “was the subject of much discussion,” both by the Rules Committee and attorneys who spoke at a May 2011 public hearing. Kilbride echoed the committee’s comments and said he believes the new trial procedure will give “jurors a better appreciation for our justice system.”
David R. Jones, a solo practitioner in Edwardsville who focuses on railroad cases, said the rule presents something completely new for the Illinois bar. While he expects lawyers and judges will adapt quickly, Jones said he has concerns that letting jurors pose questions might increase the length of trials.
“I’ve talked to some judges and they believe it will slow down jury trials,” he said. “If the judge asks jurors if they have any questions and they do, then we will have to clear the room and have a sidebar to talk about the question. I see delay after delay.”
As a judge who has allowed jurors to submit questions in both civil and criminal cases for several years now, U.S. District Chief Judge David R. Herndon of the Southern District of Illinois said the process does not increase the length of trials.
“There is no problem with delays,” he said. “You always have to have a sidebar to deal with questions, but if jurors ask questions, it amounts to one sidebar, and they don’t always ask questions.”
Putting aside his concern over delays, Jones said the soon-to-be-implemented rule could prove beneficial to lawyers on both sides.
“These questions could tell us what the jury is thinking,” he said.
“Jurors have a funny way of finding things the lawyers never even thought of. We’ll have to think more on our feet, but I think it can help us in that sense.”
Shevlin and Jump agreed.
“We are always trying to speculate as to what the jurors are thinking and now, we might be able to tailor our evidence to answer the questions they have,” Shevlin said. “It will be interesting. You might have to adjust mid-trial as to how you emphasize some of the evidence.”
While allowing jurors to submit questions for the witnesses could help with trial strategy, Jump said it might present a situation in which lawyers will need to “be prepared to completely change directions.”
“My greatest fear is that you’re on track with something and think you are developing this theory, but then a question comes out where all of a sudden you realize the jurors are completely lost,” Jump said.
“You’re going to have to take a sideline and decide whether to accommodate them or keep going with your theory.”
Along those same lines, Jump said questions from the jury might also spur a lawyer to change his or her mind about settling a case. If some of the questions give the perception that the jury favors one lawyer’s argument, Jump said that the other might feel like he or she already lost and that setting the case might be in the client’s best interest.
Stephen R. Kaufmann, an attorney at HeplerBroom LLC in Springfield, brought the idea to the Rules Committee in 2010. He became familiar with jurors submitting questions during trial in the 90′s while trying a case before then-Cook County Judge Warren Wolfson, who Kaufmann said has been a pioneer of the concept in Illinois.
“I thought it went quite well. It was a very intriguing process,” Kaufmann said. “I thought it helped the jurors remain attentive and helped the parties try the case.”
Kaufmann said he didn’t participate in a trial where jurors could submit questions to witnesses again until last year, when he tried a case before U.S. District Judge Michael P. McCuskey of the Central District of Illinois.
“That was the first time he did it and he liked the process as well,” Kaufmann said of McCuskey. “I think those attorneys and judges who are familiar with the process, like it. There may be some trepidation by those unfamiliar with the process, but there are a lot of advantages to it.”
Herndon said in his experience, he has always found jurors’ questions to be pertinent. Lawyers, he said, sometimes get tunnel vision when they prepare their cases and jurors typically pose questions that “get right to the heart of an issue.”
Not only does the process force lawyers to be better prepared, but it makes the jurors feel like they are part of the trial, Herndon said, explaining that jurors have thanked him after trials for having the opportunity to pose questions.
“To me, there is just no downside,” Herndon said of the soon-to-be-statewide rule.
“The jurors feel like they are part of the process and get a better understanding of the case and if lawyers pay attention to the questions being asked, they will get helpful insight into what the jurors are thinking. It’s really a plus, plus, plus for everybody, both sides and the jury.”