Jury.jpgThe Michigan Supreme Court recently approved new rules for civil and criminal jury trials that will give jurors an opportunity to participate in trials.

Under these rules, jurors will be permitted to take notes, discuss the evidence throughout civil trials, and submit questions to the judge to ask witnesses. A PDF copy of the rules was made available by the Free Press.

These rules apply to all Michigan civil cases, including employment discrimination claims. Trial judges, however, retain discretion in deciding whether to allow most of the new practices.

Justice Markman provided an enlightening concurrence as to why these rules are necessary. Among those reasons:

[the rules] will more deeply engage, and maintain the attention of, jurors in the proceedings that they are to judge … and they will render at least somewhat less true Robert Frost’s observation that ‘a jury consists of twelve persons chosen to decide who has the better lawyer.’

From a trial attorney’s perspective, I agree with Justice Markman that engaging jurors is an important consideration. And I think this increased engagement will have a critical impact on employment discrimination claims where resolving cases often come down to issues of credibility (but it is still important to heed Mr. Frost’s observation and get a great attorney – if you followed the link, I couldn’t resist).

Also, jurors asking a question will be much more critical of the answer, the mannerism of the person answering the question, and whether a satisfactory answer was given. Taken together, a juror may form an opinion of a critical witness that will shape the rest of the trial. 

Additionally, it is not uncommon for lawyers to present a particular theme or pursue a particular point of a case, but jurors, however, are focused on an entirely different issue. The insight from a juror’s question could provide insight to key attorneys into this disconnect and (hopefully) allow the attorney to bridge the gap. 

Further, it is frustrating (and unnerving) to go through a jury trial with no real way to gauge how your case is being received from the perspective of the jurors. Juror questions, however, will likely illuminate, at least circumstantially, issues the jury is wrestling with or otherwise suggest where the trial might end up.

These new rules take effect on Sept. 1, 2011. It will be interesting to see how these rules affect trials. And dinner is on me for the first juror to end their question with “and I can handle the truth” as an homage to the classic line from Colonel Nathan R. Jessep and delivered by Jack Nicholson in A Few Good Men.