ABA section says jury reforms should be standard practice; ATLA criticizes proposals.

As courts experiment with ways to make jurors more active participants in trials, an American Bar Association group has weighed in on how tools like juror note taking and question asking can be implemented fairly and effectively in most civil trials.

The section is urging courts nationwide to adopt the recommendations as standard practice. ATLA has questioned the need for the project.

Last fall, the ABA's Litigation Section adopted 24 "civil trial practice standards" to deal with practical aspects of trial that the rules of evidence and procedure do not fully address. Nine standards focus on jury reforms being tried around the country.

"The standards are predicated on the recognition that, in an era of increasingly complicated evidence and litigation, there are methods for enhancing jury comprehension and minimizing jury confusion that merit wider consideration and use," the section said in its report.

"The whole point of the standards is to protect the civil jury trial," said Gregory Joseph, a New York City attorney who chairs the section. "The jury trial is under attack at least partly on the theory that juries can't understand complex cases. We reject that. The standards focus on proven tools that help jurors understand complex evidence."

ATLA filed comments critical of the proposed standards before their adoption by the section. The association questioned the need for new standards, noting that they cite numerous similar guidelines from other sources. ATLA also noted that, as drafted, the proposals are not true standards--in the sense of enforceable rules or minimum requirements--but rather a series of suggestions for trial courts.

Some of the standards, such as distributing juror notebooks and allowing jurors to take notes and ask questions, are already used in some courts. The standards draw on these courts' experience and recommend routine procedures for using the tools. For example:

* Juror notebooks. The standards suggest that judges allow parties in complex cases to distribute trial notebooks to jurors. These might include preliminary instructions from the court; selected exhibits that have been ruled admissible; and material that is not in dispute, such as curricula vitae of experts, seating charts identifying attorneys and their clients, and short statements of the parties' claims and defenses.

* Juror note taking. This should be standard procedure in civil trials, the section said, as long as the court cautions jurors not to let note taking divert their attention from the proceedings and reminds them that notes are merely memory aids, not evidence. The judge should also instruct jurors who don't take notes to rely on their own recollection of the evidence during deliberations, not on notes taken by other jurors.

* Juror questions. The standards recommend that jurors be allowed to submit to the judge written questions for witnesses. Lawyers for the parties should be allowed to raise objections to the questions--out of the jury's presence--and to suggest modifications. Either the judge or an attorney should pose the question to the witness, according to the standard.

The issue of juror questions is controversial, and some critics, including ATLA, cautioned that allowing a lawyer to ask a juror's question might bias the juror in favor of that lawyer's client. ATLA recommended that only judges pose juror questions to witnesses.

The Litigation Section stuck by its proposal to allow lawyers to ask these questions, with a caveat: "In deciding whether, or when, to permit counsel to ask a juror's question, the court should consider, and take care to avoid, any risk that the inquiring lawyer will thereby gain some form of advantage by becoming in some sense aligned with the juror."

On another disputed subject, the standards recommend procedures for judges who use court-appointed experts. The standard says the expert can serve as a "judicial tutor" on technical subjects or, "in exceptional cases, as a witness to testify at trial."

ATLA urged the section to drop this standard. "When the issue is novel scientific evidence ... mainstream scientists often entertain an undue prejudice against conclusions reached by undeniably valid methodologies," ATLA wrote in its comments. ATLA warned that "independent experts should not be used to invade the province of the jury."

Other topics addressed by the standards include interim statements and arguments, demonstrative evidence, and use of courtroom technology.

The Litigation Section's report to the ABA's House of Delegates, which will vote on whether to adopt the standards at its midyear meeting this month, disclosed that the standards originated with Judge Robert Keeton, a U.S. district judge in Massachusetts. When Keeton chaired the Standing Committee on Rules of Practice and Procedure of the U.S. Judicial Conference, he suggested them as a project for its advisory committees, but they were never addressed.

"The Litigation Section's initiative, even with its opportunity for public comment, avoids the requirements of the Rules Enabling Act and omits the thorough judicial and academic analysis that the advisory committees historically have provided," said Robert Peck, ATLA's director of legal affairs.

He added that the section's report quotes favorable comments from several judges, "but not one negative opinion was acknowledged, leading one to wonder about the thoroughness of their review of the public comments."

ATLA also noted the apparent emphasis in the standards on complex or high-stakes litigation and questioned the extent to which lawyers who represent consumers and injury victims played a role in their development.

Joseph said the section aimed for balance on the task force that drafted the standards and noted that it included Gary Robb, chair of ATLA's Products Liability Section.

The complete practice standards are available on the Internet at www.abanet. org/litigation/home.html.