The Road to Reform- Judges on Juries and Attorneys

Thomas Munsterman, A Brief History of State Jury Reform Efforts, 79 re-evaluating reforms to the California civil and criminal jury systems.. This Article looks at particular reform pro-

Loyola of Los Angeles Law Review

4-1-1997

The Road to Reform: Judges on Juries and Attorneys

Franklin Strier

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THE ROAD TO REFORM: JUDGES ON

JURIES AND ATTORNEYS

Franklin Strier*

I INTRODUCrION

As perhaps never before, trial reform roils the litigation scene.Policymakers in various states are considering numerous and di-verse reform proposals.1 Such proposals do not arise in a vacuum;they are responses to perceived deficiencies This Article assessesthe judicial popularity of twenty of these proposals as measured bythe responses to a recent large-scale survey of the California judi-ciary These findings are compared with prior large-scale judicialsurveys on several of the same proposed reforms

For simplicity, the considered proposals can be categorizedinto those dealing with juries and those addressing other trial re-form topics Public dissatisfaction with the jury system intensifieddecidedly after several highly controversial jury verdicts in Cali-

fornia, most notably the O.J Simpson criminal trial.2 Shortlythereafter California joined Arizona and New York in a far-reaching reexamination of its jury system Both California's judi-ciary and legislature studied the shortcomings of the system andevaluated an array of reform proposals.3

* Professor of Law, California State University, Dominguez Hills; B.S., 1965, Brooklyn College; J.D., 1969, Rutgers University Professor Strier is the author of

Reconstructing Justice: An Agenda for Trial Reform (1994) The research for this

survey was partially funded by a grant from the California State University

Re-search, Scholarship, and Creative Activities Awards Program.

1 See G Thomas Munsterman, A Brief History of State Jury Reform Efforts, 79

re-(evaluating reforms to the California civil and criminal jury systems) The California

Judicial Council reviewed prior reports and established a Blue Ribbon Commission

on Jury System Improvement See generally J CLARK KELSO ET AL., FINAL REPORT

OF THE BLUE RIBBON COMMISSION ON JURY SYSTEM IMPROVEMENT (1996)

1249

1250 LOYOLA OFLOSANGELESLAWREVIEW

Recent jury reform proposals addressed the following topics:

* Treatment and Management

• court facilities

• treatment by court staff, judges, and attorneys

* jury fees and conditions of service

* pretrial orientation and instruction

* cognitive aids such as note taking and question

re-or court-appointed expert witnesses In adversarial trials ally, and in American courts in particular, attorneys-rather thanjudges control the trial inquiry Jury selection, evidence presen-tation, argumentation, and determination of the scope of litigationare exclusively within the attorney's bailiwick A variety of com-plicated issues arise from such attorney domination, including thepermissible bounds of zealous advocacy, the effect of imbalances

gener-in the skills of the opposgener-ing attorneys, and the impact of either onjury decision making This Article looks at particular reform pro-posals falling within the two categories heretofore delineated:those seeking to improve jury competence and those countering

[hereinafter BLUE RIBBON COMM'N REPORT] (recommending reforms to the fornia civil and criminal jury systems).

Cali-[Vol 30:1249

THE ROAD TO REFORM

the undesirable effects of attorney domination

Identifying remedial measures merely begins the reform ess Judicial approval is arguably a sine qua non for trial reform.When significant changes in trial procedure are contemplated,judges need to be involved in the formulation of the changes be-cause it is the judges who will inevitably be integral to implemen-tation As the "three-strikes" experience in California illustrated,

proc-if judges do not support a trial reform measure, implementationwill be problematic even when broad public approval exists

Waxing intolerance towards repeat criminal offenders led toCalifornia's 1994 three-strikes law.4 The law requires a sentence

of twenty-five years to life for certain felons with prior tions.5 Two years after the law went into effect, however, ninepercent of such sentences had been imposed for petty theft,thereby offending the sensibilities of many.6 Trial judges bridled

convic-at the loss of traditional judicial discretion in sentencing; some fused to enforce the law.7 In 1996 the California Supreme Courtagreed with its trial court brethren, holding that allowing onlyprosecutors, and not judges, to disregard prior convictions inthree-strikes cases violated the separation-of-powers doctrine.8The ruling left trial judges with discretion to grant leniency byoverlooking a felon's prior crimes.9

re-In order to gauge judicial opinion of the reforms proposedhere, all California Superior Court judges were surveyed during1994-95 California Courts of Appeal judges and California Su-preme Court justices were also surveyed-to see if there were anysignificant differences between trial and appellate judge attitudes

The overall response rate was 37% 1 0

4 CAL PENAL CODE § 667(b)-(i) (West Supp 1996).

5 See id § 667(e)(2)(A)(ii).

6 See Dan Morain, Democrats Offer Rival 3-Strikes Bill, L.A TIMES, July 19,

1996, at A3, A25 Although petty theft itself is a misdemeanor, people who commit petty theft and have a prior petty theft conviction face a felony conviction, rendering them subject to a three-strikes sentence if they also have a record of serious or vio- lent crimes See CAL PENAL CODE § 667(b)-(i).

7 See Jenifer Warren, Judge Says He'll Defy "3 Strikes" Sentencing Law, L.A.

TIMES, July 22, 1994, at Al, A23.

8 See People v Superior Ct (Romero), 13 Cal 4th 497, 917 P.2d 628, 53 Cal.

Rptr 2d 789 (1996).

9 See id In reaction, Senator Tom Campbell, backed by the California District

Attorneys' Association, introduced a bill into the California State Senate to remove

most of that discretion See S 331, 1995-96 Reg Sess (Cal.) (defeated in the

Cali-fornia Senate Committee on Criminal Procedure on July 16, 1996).

10 Response rates have been rounded to the nearest percent The response rate

1251

April 1997]

1252 LOYOLA OF LOS ANGELES LAW REVIEW

The survey questionnaire identified twenty proposed reformsaddressing areas of perceived jury incompetence and the problem

of attorney domination in the form of mismatched attorneys or versarial excess The questions asked whether the respondents

ad-"would" or "do" allow or favor greater use of the proposed forms Possible answers were "Yes," "No," or "Sometimes."

re-"Yes" and "Sometimes" were considered affirmative responses.Various majorities of respondents answered affirmatively toroughly half-nine of twenty-of the proposed reforms Because

no profound trial reform measure is likely to succeed without thesupport of a majority of the judiciary, only those proposals whichreceived affirmative responses from a majority of the respondentsare discussed in this Article.11 The results are tabulated in theAppendix The questionnaire also invited respondents to elabo-rate-with open-ended comments-upon their answers or to sug-gest other means for improving jury competence or mitigating theundesirable effects of attorney domination.12

for trial judges was 37%-287 out of 772 The response rate for appellate including California Supreme Court justices-was 32%-30 out of 94 Responses were computer tabulated using the Statistical Package for the Social Sciences (SPSS),

justices-a commercijustices-ally justices-avjustices-ailjustices-able stjustices-atisticjustices-al justices-anjustices-alysis progrjustices-am.

11 A majority of the judges did not respond affirmatively to 11 of the 20

pro-posed reforms The reforms and the corresponding percentages responding tively were:

affirma Written preinstructions forjurors: 24%

- Written transcripts for jurors: 30%

* Videotaped copies of the testimony for the jurors: 39%

" Specially qualified jurors in complex cases-either in

criminal or civil cases (two questions): 28%

* Experimentation with a mixed lay-professional jury-either

in all cases or complex cases only (two questions): 32%

" In camera voir dire: 37%

• Uninterrupted opening narratives by witnesses: 40%

" A trial advocacy skills course required for admission to

the bar: 44%

- Restrictions on witness coaching: 15%.

12 Some of the open-ended comments raised noteworthy additional issues and suggestions They included: limiting or eliminating attorney voir dire in civil cases-

a recent California ballot initiative restricted attorney voir dire in criminal cases, see

Crime Victims Justice Reform Act, Initiative Measure Proposition 115 (approved June 5, 1990) (sections pertaining to criminal voir dire codified at CAL CIV PROC CODE §§ 223-223.5 (West Supp 1996)); limiting the time allowed for attorneys to present their cases; limiting or eliminating peremptory challenges; giving judges more discretion to dismiss marginal cases; and using professional jurors By far the most popular, however, was the proposal to eliminate juries in complex civil cases Typical was the comment of Los Angeles County Judge John Zebrowski: "Juries are often not competent to decide complex questions In no other walk of life do we purposely assign unqualified persons to determine important issues Juries are good

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THE ROAD TO REFORM

Part II of this Article discusses the reforms proposed for proving jury performance to which a majority of the surveyedjudges responded affirmatively Part III does the same for reformproposals relating to attorney domination Part IV characterizesthe overall findings and suggests directions for future research

im-II IMPROVING JURY COMPETENCE

A Improve Jury Orientation: Respondents Were

Asked if Juror Competence Could and Should

Be Improved by Better Orientation 13

Two major national surveys studying the extent of publicknowledge of the courts concluded that "startling ignorance"characterized the general public's level of awareness of court op-erations.14 Better juror orientation could enhance jury compe-tence by more effectively introducing and educating prospectivejurors to basic legal concepts and trial procedures Current pro-grams-which are now haphazard and vary from state to state,county to county, and court to court-could be enlarged to more

for credibility questions and the like." Response to Reform Proposals naire, John Zebrowski, Superior Court Judge of Los Angeles County (subsequently appointed to California Court of Appeal, Second District, on Oct 17, 1995) (on file

Question-with the Loyola of Los Angeles Law Review).

13 See infra app., tbl 1.

14 In 1977 the National Center for State Courts sponsored a study conducted by Yankelovich, Skelly and White, Inc., to profile the American public's level of knowl-

edge of the judicial system Barry Mahoney et al., Courts and the Public: Some

Further Reflections on Data from a National Survey, in STATE COURTS: A

BLUEPRINT FOR THE FUTURE: PROCEEDINGS OF THE SECOND NATIONAL FERENCE ON THE JUDICIARY 83, 92 n.2 (Theodore J Fetter ed., 1978) The firm con-

CON-ducted personal interviews with 1931 members of the general public See id at 84.

They found that "the public is, by and large, woefully ignorant of what most judges and lawyers would consider to be basic rules and concepts governing the operation

of courts." Id at 87 The Yankelovich firm found this consistent with other surveys

that sought to ascertain the extent of public knowledge of the courts See id.

In 1983 the Hearst Corporation followed up on the Yankelovich survey with

its own national survey and came to the same conclusion See FRANK A BENNACK,

JR., THE HEARST CORPORATION, THE AMERICAN PUBLIC, THE MEDIA & THE

JUDICIAL SYSTEM: A NATIONAL SURVEY ON PUBLIC AWARENESS AND PERSONAL

EXPERIENCE 3 (1983) Using remarkably similar language, the report concluded that

"[t]he American public , is woefully uninformed about the operation of our courts

and the people who preside over them." Id at 3 "Even more importantly," the

re-port adds, "they are dangerously misinformed about some of the most fundamental

principles upon which our concept of justice is based." Id As a salient example of public misinformation, the survey revealed that fully half of the public did not under- stand or appreciate the legal concept of innocent until proven guilty See id at 5.

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1254 LOYOLA OFLOSANGELESLAWREVIEW

substantive training sessions

Courts may choose from a wide range of training and tion programs to elevate juror sophistication Handbooks, lec-tures, and audio-visual presentations ordinarily provide valuableinformation Handbooks are available to jurors on their first day

educa-of service in most courts, but vary markedly in size, coverage, andcontent.15 Topics typically addressed include jury selection; thefunctions of the attorneys, judge, and jury; trial procedure; jurydeliberations; and desired juror conduct.'6 Other material maydiscuss the difference between criminal and civil cases; challengesfor cause and peremptory challenges during jury selection; whatconstitutes evidence; what is meant by an inference; and when jurysequestration is necessary.'7 The jury deliberations discussion mayaddress deliberation procedure, restrictions on discussing the case,the meaning of the rule that the case must be decided on the evi-dence only, and the role of the foreperson.'8

Orientation lectures vary as much as the handbooks Lecturesmay be given by a judge or a jury clerk.19 Whether the lecture will

be lengthy or brief, comprehensive or sketchy, administratively orlegally oriented, detailed or abstract, depends on the identity ofthe lecturer and the time available.20 The most effective lecturesare those that are given by judges and that emphasize the impor-tance of jury duty, explain the basic nature of the trial whileavoiding sophisticated concepts, indicate the inherent uncertainties

of the trial process, and do not reiterate information given in thehandbook or audio-visual presentation

Handbooks and audio-visual presentations have certain vantages over live lectures They provide uniform information toall prospective jurors, usually speak to the most frequently askedquestions, and do not consume the time of court personnel.Overall, well-executed orientations can convey essential informa-tion to prospective jurors while mitigating any apprehensions theymay have about jury service Such better prepared jurors tend toperform their duties more effectively, often to the satisfaction of

ad-15 See G THOMAS MUNSTERMAN ET AL., NATIONAL CENTER FOR STATE

COURTS, METHODOLOGY MANUAL FOR JURY SYSTEMS: IN SUPPORT OF THE LEAA

INCENTIVE PROGRAM IN JUROR USAGE AND MANAGEMENT 5-3 (1981).

THE ROAD TO REFORM

the jurors themselves

In California the jury commissioner is statutorily charged withthe obligation to provide orientation for new jurors.21 Orientationvideotapes are used in Los Angeles and Sacramento.22 Both con-vey information about the historical development of the jury sys-tem, the importance of juries in our constitutional system of gov-ernment, the basic differences between civil and criminal cases, therole of the various participants in the court system, the process ofjury selection and voir dire, the order of proof, and the delibera-tive function.Z3 The California Blue Ribbon Commission on JurySystem Improvements (Blue Ribbon Commission) recommendedthat the California Judicial Council, to which the Blue RibbonCommission reported, produce a "statewide juror orientationvideotape which can be used by jury commissioners, with or with-out modification, to satisfy the statutory obligation to provide ju-ror orientation."24 Several judges in the survey gave open-endedresponses extolling the value of orientation For example, JudgeJeffrey Gunther of Sacramento County wrote: "I do an extensivejuror orientation and have found that it has great benefits."5Judge Richard Neidorf of Los Angeles County adds: "If doneproperly [orientation] could solve lots of problems, including un-necessary hung juries The Judicial Council and/or State Barshould have a standardized orientation state wide."26

B Preinstruction: Respondents Were Asked if They Would or Do Allow Jurors to Hear the Judge's Instructions Before-as Well as

After-Evidence-Taking 27

As if the wording of judicial instructions on the law were sufficiently troublesome to jurors, trial practice compounds theproblem with timing strictures Current trial procedure withholds

in-nearly all of the substantive law from the jurors until after they

21 See CAL CIV PROC CODE § 214 (West Supp 1996).

22 See BLUE RIBBON COMM'N REPORT, supra note 3, at 80.

23 See id at 80-81.

24 Id at 81 (Recommendation 5.1).

25 Response to Reform Proposals Questionnaire, Jeffrey Gunther, Superior

Court Judge of Los Angeles County (on file with the Loyola of Los Angeles Law

Review) [hereinafter Gunther Response].

26 Response to Reform Proposals Questionnaire, Richard Neidorf, Superior

Court Judge of Los Angeles County (on file with the Loyola of Los Angeles Law

Review).

27 See infra app., tbl 2.

1256 LOYOLA OF LOS ANGELES LAW REVIEW

hear all the evidence The objective is to keep them open to all formation Whether that objective is met is uncertain What iscertain is that this ignorance-imposing stricture denies jurors thecapacity to discriminate the key factual issues from the mass of in-formation they receive They must interpret the evidence without

in-a sense of the legin-al requirements thin-at must be met by the pin-arties.Essentially, the rules of the game are unknown to the jurors untilthe game is over Envision being the scorekeeper of an athleticcontest without knowing what acts receive points or penalties untilafter the conclusion of the game An already difficult task thus be-comes harder

Giving the jurors a preliminary version of the instructions fore-in addition to after-the evidence is heard can rectify thisproblem Some states already require this.28 Judge WilliamSchwarzer, Director of the Federal Judicial Center, calls these in-structions "the logical corollary to the lawyers' opening state-ments."29 Studies consistently show that preinstructing jurors with

be-a preliminbe-ary chbe-arge before hebe-aring the evidence would grebe-atlyfacilitate various aspects of jury performance, such as improvingjuror integration of law and facts,30 enhancing juror recall,31 im-proving juror focus on the relevant issues, enhancing jurors'chances of applying the correct rule to the evidence,32 reducing ju-ror questions during deliberations,33 creating more informed ver-dicts,34 and increasing juror satisfaction.35 Further, researchers

28 See, e.g., ARIZ R CRIM P 18.6(c) ("Immediately after the jury is sworn, the

court shall instruct the jury concerning the elementary legal principles that will

govern the proceeding.").

29 William W Schwarzer, Reforming Jury Trials, 132 F.R.D 575,583 (1991).

30 See Amiram Elwork et al., Juridic Decisions: In Ignorance of the Law or in

Light of It?, 1 LAW & HUM BEHAv 163, 163 (1977); Saul M Kassin & Lawrence S.

Wrightsman, On the Requirements of Proof- The Timing of Judicial Instruction and

Mock Jury Verdicts, 37 J PERSONALITY & SOCIAL PSYCHOL 1877, 1877 (1979); E.

Barrett Prettyman, Jury Instructions-First or Last? 46 A.B.A J 1066 (1960); Vicki

Lyn Smith, The Psychological and Legal Implications of Pre-Trial Instruction in the Law (1987) (unpublished Ph.D dissertation, Stanford Univ.).

31 See Elwork et al., supra note 30, at 169-77.

32 See Amiram Elwork & Bruce D Sales, Jury Instructions, in THE

PSY-CHOLOGY OF EVIDENCE AND TRIAL PROCEDURE 280, 291 (Saul Kassin & Lawrence

Wrightsman eds., 1985).

33 See Leonard Sand & Steven Reiss, A Report on Seven Experiments

Con-ducted by District Court Judges in the Second Circuit, 60 N.Y.U L REV 423, 439-42

(1985).

34 See Commission on Fed Courts, New York State Bar Ass'n, Improving Jury

Comprehension in Complex Civil Litigation, 62 ST JOHN'S L REV 549,553 (1988).

35 See Jury Comprehension in Complex Cases, 1989 A.B.A LITIG SEC 49-52.

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THE ROAD TO REFORM

Larry Heuer and Steven Penrod found in a 1989 survey of consin judges that the judges expressed more satisfaction with theverdicts of preinstructed juries and that preinstruction made thetrial fairer.36 Moreover, the judges stated that the anticipated dis-advantages-that preinstruction disrupts the trial, adversely effectsjury performance, or is impractical did not materialize.37 Despitethese favorable empirical findings of behavioral science, few courtshave yet to adopt this sensible reform

Wis-To preinstruct without prejudice to either party, the courtshould require attorneys to submit proposed instructions to thecourt at the outset of trial The judge can then apprise the jury ofthe basic uncontested legal doctrines involved The Blue RibbonCommission recommended that trial judges, in their discretion,preinstruct the jury on the substantive law involved in the case.38

In surprising contrast with the results of this question, where

80% answered affirmatively that jurors should hear tions, only 23% thought that jurors should be allowed to see writ-

preinstruc-ten preinstructions Also noteworthy about the responses to thelatter question is that it is the only one showing a significant dis-parity between trial and appellate judges Though only 21% of thetrial judges said they would allow jurors to see preinstructions, amajority-52%-of the appellate justices answered affirmatively.Further research may ascertain the cause of this disparity

C Juror Questions: Respondents Were Asked if They Would or

Do Allow Jurors to Ask Questions 39

The primary means of trial investigation-witness tion-is typically denied to the jury.40 One might believe, there-

interroga-36 See Larry Heuer & Steven Penrod, Instructing Jurors: A Field Experiment with Written and Preliminary Instructions, 13 LAw & HUM BEHAV 409, 409-30 (1989) [hereinafter Heuer & Penrod, Instructing Jurors].

37 See id at 427-30 Research also indicates that the vast majority of jurors not suspend their decision until the end of the trial See Robert Forston, Sense and

can-Non-Sense: Jury Trial Communication, 1975 BYU L REV 601, 612 Hence there is

a concern that preinstruction would further predispose the jurors to prejudge But

one study found to the contrary: Preinstructed jurors were more likely to defer

judgment See generally Smith, supra note 30 (concluding that preinstruction

en-hances juror performance).

38 See BLUE RIBBON COMM'N REPORT, supra note 3, at 93 (Recommendation

5.6).

39 See infra app., tbl 3.

40 See Lisa M Harms, Comment, The Questioning of Witnesses by Jurors, 27

AM U L REV 127,132 (1977).

1258 LOYOLA OF LOS ANGELES LAW REVIEW

fore, that the occasional allowance of juror questions is a newtrend Yet English courts permitted juror interrogation as early asthe eighteenth century.41 Moreover, juror questions were allowed

by a few American courts in the nineteenth century, with thepractice becoming formalized in the United States in the 1970s.42

The court's authority to permit juror interrogation is clear.43Nevertheless, jurors rarely get to question a witness.44 No stateaffirmatively offers or encourages the practice, although a majority

of states permit the occasional request by a jury seeking to askquestions on its own initiative.45

Why not allow juror questions? After all, "while justice isblind, jurors need not also be."' 46 From the jurors' perspective thepotential truth-seeking advantages of juror interrogation are obvi-ous Responses to juror questions can increase the informationupon which the jury decides by fleshing out neglected evidence,clarifying the evidence and law, and identifying areas of misunder-standing.47 Furthermore, by involving jurors more in the trialprocess, questions probably increase jurors' attention and interest

in the case48 and alleviate their doubts about the testimony.49 torneys benefit too They can restructure their evidence presenta-tion to improve juror understanding based upon the omitted andmisunderstood evidence revealed by the juror questions.50 Juror

At-41 See WILLIAM BLACKSTONE, BLACKSTONE'S COMMENTARIES ON THE LAW 685

(Bernard C Gavit ed., Washington Law Book Co 1941) (1892) For a detailed

his-tory of jury questions, see Harms, supra note 40.

42 See Michael Wolff, Juror Questions: A Survey of Theory and Use, 55 Mo L.

46 Michael A McLaughlin, Questions to Witnesses and Notetaking by the Jury as

Aids in Understanding Complex Litigation, 18 NEW ENG L REV 687, 697 (1983).

47 See Larry Heuer & Steven Penrod, Juror Notetaking and Question Asking

During Trials: A National Field Experiment, 18 LAW & HUM BEHAV 121, 142

(1994) [hereinafter Heuer & Penrod, Juror Notetaking].

48 See Wolff, supra note 42, at 824.

49 See Larry Heuer & Steven Penrod, Increasing Jurors' Participation in Trials:

A Field Experiment with Jury Notetaking and Question Asking, 12 LAW & HUM.

BEHAV 231, 237 (1988) [hereinafter Heuer & Penrod, Field Experiment]; Heuer & Penrod, Juror Notetaking, supra note 47, at 125.

50 See The Honorable B Michael Dann, "Learning Lessons" and "Speaking

Rights": Creating Educated and Democratic Juries, 68 IND L.J 1229, 1253 (1993);

Heuer & Penrod, Field Experiment, supra note 49, at 231; Larry Heuer & Steven D Penrod, Some Suggestions for the Critical Appraisal of a More Active Jury, 85 Nw U.

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THE ROAD TO REFORM

questions may also flag juror biases to the judge and attorneys,thus facilitating corrective measures before jury deliberation when

it becomes too late

On the rare occasions when juror questions are permitted, aproposed question must first be approved by the judge If ap-proved, the judge usually gives the attorneys the opportunity toobject Tactically, this can pose a Hobson's choice to the attorneywho objects to a juror's question: either risk offending the ques-tioning juror or allow the introduction of possibly inadmissible andpotentially damaging evidence in response to the question In thelatter event the only protection is the vigilance of the judge, whocannot be presumed to catch all inappropriate questions beforethey are answered nor all inadmissible testimony given in response

to an improper juror question.51

The potential for upsetting traditional courtroom protocol isinherent in juror -questions They may result in surprises and de-stroy the attorney's strategy; they might become a nuisance to thejudge; and the jury might draw inappropriate inferences if an at-torney successfully objects to a juror's question Another key con-cern over juror questions is that, at least theoretically, they canundermine juror impartiality By asking questions, the juror maybecome an advocate or may develop biases that threaten the in-tegrity of the system.52 Nonetheless, field studies by Heuer andPenrod failed to confirm any of these concerns.53 Judges on theBlue Ribbon Commission who had permitted juror questions alsoreported the absence of negative consequences 54 Convinced thatthe benefits of juror questions are real and the concerns largelyspeculative, the Blue Ribbon Commission recommended thatjudges advise jurors of their right to submit written questions.55

L REV 226, 232 (1990); Hedieh Nasheri & Richard J Rudolph, An Active Jury: Should Courts Encourage Jurors to Participate in the Questioning Process?, 16 AM J.

not become advocates) Moreover, any of these concerns can be remedied on

ap-peal See Wolff, supra note 42, at 839 n.123.

54 See BLUE RIBBON COMM'N REPORT, supra note 3, at 85-86.

55 See id at 86-88 (Recommendation 5.3).

1260 LOYOLA OF LOS ANGELES LAW REVIEW

D Issue Separation: Respondents Were Asked if Greater Use

Should Be Made of Issue-Separated Trials 56

Current trial practice does not lend itself to juror sion of evidence because all issues are litigated at once The evi-dence on all potential issues-no matter how lengthy, complicated,

comprehen-or technical-is heard in one nonsegmented, continuous trial.Partisan evidence presented by one side, often in disjointed seg-ments, is separated by long delays from testimony on the samesubject from opposing counsel The resulting hodgepodge con-founds the logical ordering of evidence often necessary for jurors

to systematically consider and make findings on specific issues.Complex cases exacerbate the problem Jurors tend to con-fuse evidence in trials involving multiple parties, multiple causes ofaction, or multiple offenses As a result, they use evidence admit-ted on one issue to resolve other issues.57

A more juror-friendly approach would sever the trial issues.Potentially dispositive issues could be presented first; evidencefrom both sides could be heard and then resolved by the jury Inthis way the scope of subsequent issues could be narrowed, and theneed for some evidence would be obviated Juries in both federalcourts and many state courts, for instance, commonly consider theissues of liability separately before considering damages in a civilcase.58 A finding of no liability eliminates the need for the jury tohear any evidence related to damages Experience also suggeststhat a finding of liability will encourage the parties to settle.59But the separation of liability and damages merely scratchesthe surface of possibilities The liability issue, for example, can befurther subdivided into serial consideration of the evidentiarycomponents of duty, causation, and defenses.60 This seriatim ex-

56 See infra app., tbl 4.

57 See J Alexander Tanford & Sarah Tanford, Better Trials Through Science: A

Defense of Psychologist-Lawyer Collaboration, 66 N.C L REV 741,750 (1988).

58 See Schwarzer, supra note 29, at 594-95; Louis Harris and Associates, Inc., Judges' Opinions on Procedural Issues: A Survey of State and Federal Trial Judges Who Spent at Least Half Their Time on General Civil Cases, 69 B.U L REv 731, 743

(1989).

59 See MANUAL FOR COMPLEX LIGATION § 21.632 (3d ed 1995).

60 When coupled with the use of special verdicts, discussed infra Part II.E, this

degree of issue separation could dramatically foreshorten civil trials A special dict finding of no duty or no causation, for example, would obviate the need to hear

ver-[Vol 30:1249

THE ROAD TO REFORM

amination of issues should markedly enhance jury fact finding byenabling the jury to focus on one issue at a time Evidence therebybecomes more orderly and understandable to the jurors Even ifall the issues must eventually be considered, the jurors' cognitivetask is greatly simplified by mitigating the confusion that attendsprocessing evidence on multiple issues The longer and morecomplex the trial, the greater the potential benefits of issue sepa-ration As longer trials become more commonplace, the appeal ofsuch severed-issue trials grows The need is evident From 1968 to

1988 the percentage of civil trials in federal court that took nomore than one day was halved while the number of trials lastingten or more days almost quintupled.61

Despite the potential advantages and availability62 of issueseverance, it is rarely used.63 Yet a 1988 nationwide Harris poll of

1000 federal and state judges indicated strong judicial support forthe practice.64 The overwhelming majority said they had granted

or required separation of issues and that, on balance, it helpedrather than hindered the process.65 One key advantage they citedwas improving the fairness of the outcome; another was expeditingsettlements and the trial process.66

In the present survey open-ended responses indicated severalCalifornia judges were of like mind Judge Jeffrey Gunther, forexample, wrote that issue-separated trials "are shorter and settle-ment during the trial is more likely.'' 67 Not all judges were in con-sensus on this presumed benefit, however Kern County JudgeRoger Randall said, "I believe that issue-separated trials denigrate

all further evidence There is always the possibility that an appellate court would

reverse and remand, necessitating trial of the issues not presented to the jury The

relatively low likelihood of this, however, should not preclude terminating

delibera-tions once the jury has made a dispositive decision.

61 See Stephen J Adler, Can Juries Do Justice to Complex Suits?, WALL ST J.,

Dec 12, 1989, at B1, B6.

62 The federal courts and most state courts allow issue severance See FED R.

Civ P 42(b) (permitting issue severance); CAL CIV PROC CODE § 598 (West 1976

& Supp 1997); HAW R Civ P 42(b); CoNN R Cr § 133 (permitting cause of tion severance but not issue severance).

ac-63 See Louis Harris and Associates, Inc., supra note 58, at 743.

64 See id.

65 See id.

66 See id.

67 Gunther Response, supra note 25 Opposition to this proposal more likely

originates from the bar than the bench A 1988 study found that issue severance may

decrease the likelihood of a plaintiff verdict See Doyle W Curry & Rosemary T Snider, Bifurcated Trials: How to Avoid Them-How to Win Them, TRIAL, Mar.

1988, at 47.

Apri 1997]