Arizona Commission proposes far-reaching changes to jury procedures.

An Arizona judicial commission has recommended a package of rule changes that would significantly alter civil trial procedures in the state. Proposed changes would

* give the jury detailed instructions before opening statements, so that jurors know precisely what each side must prove in order to win;

* encourage note-taking by jurors;

* provide copies of exhibits and glossaries of confusing terms to jurors;

* allow summaries of depositions to be presented to the jurors;

* permit questions from jurors;

* encourage interim summaries by attorneys during long trials; and

* allow jurors to discuss evidence among themselves before the trial has ended.

Jurors: The Power of 12, the report of the Arizona Supreme Court Committee on More Effective Use of Juries, includes 55 specific recommendations that range from using new source lists, to increasing jurors' pay and reimbursing them for expenses, to conducting post-verdict debriefings of jurors involved in unusually stressful trials.

The jury commission, established in 1993, was composed of court administrators, academics, civil and criminal attorneys, trial and appellate judges, and former jurors. Proposed changes in juror compensation will require legislative action, but most changes to trial practices can simply be ordered by the court.

"Increasing criticism is being leveled at jury decisions," said B. Michael Dann, presiding judge of Maricopa County Superior Court (Phoenix) and chair of the jury commission. He said that much of the criticism cites 'enforced juror passivity during trial and unacceptably low levels of juror comprehension of the evidence and of the court's instructions."

Rich Gulbrandsen of Mesa, president of the Arizona Trial Lawyers Association, said that member attorneys "are very happy with the activist role played by our judges in trying to improve the judicial system, and that is what they are trying to do here. Anything that can make the system work better is something that we are inclined to support."

On the other hand, Gulbrandsen said, there is always risk in change, and its far-reaching effects are rarely fully anticipated. "There is often good reason for tradition to be followed."

Gulbrandsen said that he thought giving detailed jury instructions at the outset of trial is "a great idea. Let the jury know up front how to fit the proof o to the skeleton of the trial."

Note-taking has been permitted in Arizona civil trials for some time at the judge's discretion. Similarly, providing copies of exhibits to jurors is fairly common. "That is already my practice when I am permitted to do so," Gulbrandsen said.

Deposition summaries, however, are likely to be opposed by Arizona lawyers. The point of contention is in allowing the judge to determine what the deponent intended to say. "That seems to be a matter of fact, not law, and the jury has the right to determine that," Gulbrandsen said.

Support for juror questions depends on the safeguards in the system. As proposed, written unsigned questions would be submitted to the bailiff and then to the judge, who would consult with attorneys outside the hearing of the jury. If the question was admissible, it would be asked. If not, that would be explained to the jury.

The issue of juror discussion of evidence poses no problem for plaintiff attorneys, said Gulbrandsen. "In fact, in combination with the right to ask questions, it could help clarify points of confusion among jurors."

At TRIAL press time, meetings were being scheduled in Arizona to exchange views on the proposed changes. Gulbrandsen said, "Perhaps we should consider a timetable for trying some of these changes, then evaluating them. It would be good to allow for some kind of sunset clause or some other means to measure the effects of these changes before proceeding with them."

Dann said the commission wants trials that let jurors "actively participate to a greater degree in the fact-finding process."

A copy of the commission report can be obtained from Maricopa County Superior Court, 201 W. Jefferson Street, Phoenix, AZ 85003, tel. [phone].