What If The Jury—Not The Attorney—Is Allowed To Question Your Witness? Just Ask Michigan.

As first or second chair at trial, you fully expect to take notes, ask questions of witnesses, even take advantage of the breaks to discuss trial developments. But what if these activities were not exclusive to attorneys, but jurors participated in them as well?

If you’re a litigator in Michigan, new jury instructions permit just that.

On Wednesday, the Michigan Supreme Court announced new rules that allow—even encourage—jurors to take notes, ask questions of witnesses, and, during civil lawsuits, discuss the trial during breaks.

Suddenly, Detroit lawyers are scrambling to make voir dire a more important part of their legal strategy.

The document outlining Michigan’s new rules is brief—just 14 pages. Most of the rules are deliberately vague, left to the judge’s discretion to implement. For example, on questioning witnesses, the rules state:

“The court may permit the jurors to ask questions of witnesses. If the court permits jurors to ask questions, it must employ a procedure that ensures that such questions are addressed to the witnesses by the court itself, that inappropriate questions are not asked, and that the parties have an opportunity outside the hearing of the jury to object to the questions. The court shall inform the jurors of the procedures to be followed for submitting questions to witnesses.”

At the same time, rules such as giving jurors a copy of court transcripts, transcript summaries, and court instructions are now obligatory.

The Detroit News and the Wall Street Journal Law Blog note the mixed opinion surrounding the new rules:

“’These new rules contain procedures, such as expanded jury note-taking and asking questions, which if properly used, have a valid place in our judicial system. However, they also contain multiple procedures that are highly controversial and are likely to prove problematic,’ Justice Marie Hathaway, a former Wayne County judge, warned in a dissenting opinion.”

Opponents to the new rules suggest the procedures will increase the burden placed upon courts in terms of adding lengthy jury instructions and associated costs. Others worry the new rules will increase the number of appeals and mistrials.

For now, these new rules don’t take effect until September. So, at this point, the effect of an empowered role of jurors on the number and outcome of lawsuits in Michigan is still uncertain.

But, we have already seen how social media interaction has affected lawsuit verdicts. Should the Michigan jury rules become a trend nationwide, you can be sure that witness prep and voir dire strategies will also start to change the practice and outcome of law.

For more information about developments in voir dire and consequences for your firm, read “Tips For Voir Dire: Check Faces and Facebook.”

 

-WB

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