This week, the Michigan Supreme Court integrated one of its pilot projects, involving the specific tasks of trial jurors, into the Michigan Rules of Court. The significant changes take effect September 1st.
The MSC order, with only Justice Diane Hathaway dissenting, essentially revolutionizes the role of the jury. Trial lawyers will note the sea change authorized by the new rules.
Some of us have already utilized these rules by conducting trials in Oakland Circuit Judge Potts' courtroom.
The new rules are significant in that, for the first time, standard jury instructions will be supplemented with legal theories of the issues, drafted by the opposing counsel. A trial judge, however, retains all "editorial" powers relative to the theories and issues submitted by the lawyers. Under the old rules, in addition to a reading of a series of standard instructions, the parties requested various "special instructions" applicable to their specific case.
Here are the other significant changes:
- In addition to the standard opening statement, parties may now request making an "interim commentary" as the evidence is going in. This creates the possibility of editorializing the content of the evidence as it is entered into the record; the old rules limited all pre-evidence commentary to the opening statement.
- Also, a distinct possibility of in-trial interactive dialogue with a jury is possible given the new provisions allowing jurors to submit their own questions to witnesses.
- Where appropriate, litigants will submit trial notebooks to jurors containing witness lists and relevant documents.
- In civil cases, where depositions will be read into the record at trial, the parties must submit joint deposition summaries to the jury.
- In cases utilizing expert testimony, one party's expert will be allowed to hear the testimony of the other party's expert, rather than sitting in the hallway of the courtroom under the usual sequestration order.
- Perhaps most significant, jurors will be permitted to discuss the case amongst themselves during regularly scheduled breaks in the trial rather than waiting until formal deliberation when the proofs are completed.
In her dissent, Justice Hathaway commented that the rules allowing for interim jury questions, interim deliberations, and the submission of deposition summaries, will poison the trial process with unnecessary complications.
We here at the Law Blogger must admit that, with lawyers being, er, lawyers, the new rules have fantastic potential to complicate the trial process. On the other hand, the Wall Street Journal's Law Blog applauds these developments to the extent that they treat jurors as thinking adults; not a bunch of kindergartners.