Making complex litigation clear.

Shouldn't judges and attorneys try to adopt new, commonsense techniques to enhance juror interest and understanding?

Complex litigation presents challenges for maintaining juror interest and helping jurors make careful decisions. Interviews with jurors over the years have revealed a number of common complaints about the process, with most complaints centering on jury selection, trial procedures, and jury instructions.

These problems intensify in long jury trials, such as those for certain patent infringement, products liability, and medical negligence claims. Factual matters often involve complex high-tech substantive issues. Legal matters may include esoteric issues of the various areas of practice. The complexity of these cases has led some observers to question whether jurors should even decide them.

As long as the right to a jury trial remains a firm fixture in the U.S. legal system, jurors will continue to struggle with complex cases. So shouldn't judges and attorneys try to adopt new, commonsense techniques to enhance juror interest and understanding?

The answer, of course, is a resounding "Yes." This article suggests innovative techniques used during the past several years in complex patent infringement lawsuits. The same techniques can be adopted for other complex, and not-so-complex, trials.

Under the Federal Rules of Civil Procedure and in many state systems, trial judges have wide discretion over jury selection, trial procedures, and jury instructions. From the outset of trial, a judge can hammer home a clear message to attorneys: They should conduct the proceedings with juror comprehension as a top priority.

Jury selection

Juror questionnaires. To lay the groundwork for effective jury selection, counsel should ask the trial judge to let potential jurors fill out a questionnaire before voir dire takes place. This will speed selection as well as alert counsel to certain jurors' attitudes that may require further questioning.

With the judge's approval, the parties prepare a mutually acceptable questionnaire. Ideally, the judge then has a magistrate summon the jury pool to court a week before trial to fill out the questionnaire. The inquiries may cover anything from personal data to a person's familiarity with technology pertinent to the issues.

Counsel should have well-considered reasons for asking the questions because the judge must be convinced that a questionnaire--and the questions it contains--is a sound idea. One persuasive reason is that a questionnaire saves time without sacrificing fairness.

Each attorney should receive copies of the responses under a protective order to ensure jurors' confidentiality, and potential jurors should know this. Most look at the selection process as a test to see if they are good enough to serve, a perception that reduces their willingness to answer candidly.

They may think that acknowledging normal human feelings might result in their being struck from the panel. This may lead them to believe they are unfit for jury service or, even worse, not good people. This fear may motivate many jurors to provide less than accurate information about themselves, complicating the task of obtaining a fair and impartial jury.

The solution: Lawyers should change the way jurors think. Instead of letting them believe the inquiry is conducted to determine whether they are good people, lawyers should recast the process as an opportunity for jurors to help the court determine the type of jury that best suits them.

Years ago I proposed a pre-selection instruction to be read by the judge to assure potential jurors of the nonjudgmental nature of jury selection. It can be read to the jury pool at the beginning of voir dire. An example of the central message follows.

Ladies and gentlemen of the jury, by your preliminary

answers to the questions about your

citizenship and residency, you have shown that

you are qualified to serve as jurors in this court.

The remainder of the process, which we call

voir dire, is aimed at determining which type

of jury you are best suited to sit on as a juror.

Because of the different life experiences of

jurors, some are better suited for criminal

trial juries and others, for civil trial juries. Similarly,

within civil trial juries generally, some

jurors may be better suited to hear trials concerning

automobile accident claims, for example,

and others may be better suited to hear

patent suits.

Thus freed from the anxiety of possibly being branded unfit, prospective jurors tend to respond with remarkable candor. This instruction not only results in better jury selection but also allows unselected jurors to feel good about themselves and maintain pride about their jury service despite their dismissal.

Lawyer-conducted voir dire. In most of my complex federal jury trials, the judge has authorized lawyer-conducted voir dire on a limited basis. Many of today's judges --particularly those with extensive litigation experience--recognize the need for this and require little persuading.

In my experience, the best limit to propose is the elimination of "jury conditioning" questions--those designed to "try the case" during voir dire, which is the hotbutton issue for most judges who oppose this sort of lawyer participation.

Voir dire of potential jurors as a group should begin with general questions from the judge. Then, the lawyers should be given time for their voir dire within the established limits. Lawyers should also be allowed to follow up on questionnaire responses at this time.

Voir dire by the court and counsel is best initially conducted with all potential jurors sitting in the gallery seats in the courtroom. When a potential juror gives a response that calls for further inquiry, the judge can ask that person to come forward for a sidebar at the witness box. Follow-up lawyer questioning can also be conducted at sidebar, which protects juror confidentiality and facilitates candid responses that enable the court to identify potential jurors who may be better suited to sit on a different type of jury.

Voir dire in a complex case should usually take no more than three hours. This might seem like a short amount of time, but if the questions are properly limited and voir dire is properly controlled by the judge, it's possible. Most attorneys believe they should have some voice in voir dire, but because most want more input than they actually need, they end up asking the kinds of questions judges will not allow.

It is distressing that so many judges will not allow lawyer-conducted voir dire. The court can prescribe tight ground rules to prevent undesirable questioning techniques or subjects, yet let lawyers identify any bases for strikes for cause and formulate informed bases for peremptory strikes.

Lawyers who have tried many cases know that judges simply cannot elicit from jurors the kind of candid information necessary for effective jury selection. Even where judges ask meaningful questions, the authoritative image of the black-robed judge, cloaked in the powerful authority of position, inadvertently intimidates many jurors and inhibits open responses.

The federal rules also allow a judge to determine the size of the jury. Lawyers should seek a ruling that there be no alternate jurors. The judge should require a jury of at least 12 but no fewer than 6. This ensures that no juror will be less attentive because of the designation "alternate."

Trial procedures: deposition reading

Few jurors enjoy listening to the seemingly interminable reading of depositions. Even the most creative, dynamic lawyers cannot make the experience palatable, much less interesting.

There is no reason to treat a deposition differently from any other type of evidence. The parties should have the option of submitting deposition transcripts as written exhibits, redacted by the parties' agreement or the court's ruling to eliminate inappropriate material.

But how does counsel use the timesaving, boredom-eliminating procedure of submitting depositions as exhibits and still call the jurors' attention to the most important parts of the testimony? One option is to highlight these parts of the text with a colored pen.

Each party must take care to use a different color. An opponent in one of my cases highlighted a full page of text before and after a section I had highlighted-using the same color I had used, which foiled my effort to distinguish the passage.

Counsel for either party can also flag important pages of the deposition so that the jurors can spot them quickly. This system, which can be used with any documentary exhibit, works like a charm, and judges embrace it.

Jury instructions

Jurors usually hear all the evidence without the slightest understanding of the law affecting the case. Only when the parties finish presenting evidence do jurors receive instructions on the law. This is too late to help them know whet to look for as the evidence is presented.

During the trial, jurors can refer back only to the lawyers' opening statements for explanations of law. That option is limited in two ways: (1) Judges usually frown on lawyers explaining the law, except for the most basic concepts, and (2) during opening statements the lawyers have not yet had a chance to build trust with jurors. Panel members are skeptical of anything the lawyers say. So, the jury typically feels at sea about what is going on.

Particularly in a complex case, the judge should give comprehensive instructions in lay terms to jurors before allowing opening statements to begin. At a minimum, the instructions should deal with pertinent legal concepts and provide an outline of the issues in dispute and related burdens of proof.

Judges can best help jurors hearing a complex case by allowing them to take notes during testimony and to maintain notebooks during the trial. With the court's approval, each party should be able to designate exhibits to be inserted into the jurors' notebooks, which enables jurors to look frequently at important evidence as the trial unfolds. These notebooks should also contain copies of the court's preliminary jury instructions as well as a glossary of relevant technical terms for easy reference during deliberations.

In many patent infringement cases, for example, jurors may receive copies of the patent-in-suit and pertinent parts of its prosecution history. This procedure works better than passing exhibits from juror to juror at trial. Under a typical court order, jurors cannot take the notebooks out of court.

Jurors also should be allowed to submit written questions to the court during the trial to clarify testimony. Lawyers can view these questions at sidebar before the witness leaves the witness box. Counsel can either object to the testimony the questions would elicit, if appropriate, or, if the questions are approved by the court, query the witness.

These questions often tip counsel to subjects that concern jurors. The court, however, should not allow jurors to inquire about their own theories of the case or initiate new lines of questioning.

Even in the most progressive courts, lawyers trying to change jury instruction procedures face significant hurdles. Judges are leery of altering established, traditional jury instructions for fear of being reversed on appeal.

Lawyers, fearing criticism from clients, have similar anxiety about eliminating complex language and "boilerplate" provisions from traditional instructions. The lawyers are most likely afraid that a client may blame a bad result on failure to obtain some arcane instruction, even though the blame is without basis.

Adding insult to injury, judges may read the instructions aloud, then dispatch jurors to the jury room without allowing them to take along a copy of the instructions. Many judges theorize that jurors may focus on a particular instruction and not consider the instructions as a whole. In my experience, jurors consider all instructions, but they need to have them in writing to facilitate deliberations.

Jury instructions in complex litigation are usually organized so that the jury must match up juror interrogatories--usually written in a separate document--with pertinent instructions either from memory or, if the court allows the jurors to have copies of the instructions, from a single massive pile of instructions.

When jurors try to work out a "decision tree"--a deliberation technique that involves asking themselves questions in a logical, progressive sequence--to help them decipher issues in the case, they face the daunting task of having to cope with extensive, poorly organized instructions that do not seem to correlate to the juror interrogatories. This problem can be addressed in several ways.

First, attornneys should restructure the traditional format of jury instructions by interspersing juror interrogatories throughout the instructions instead of putting them at the end. This technique alleviates jurors' confusion and allows them to consider the interrogatories along with the correlating subject-matter instructions.

Jurors should be given a separate recap sheet on which to copy their interrogatory answers. The sheet will serve as a summarizing "verdict form."

Second, each juror should receive a complete set of the final instructions to add to the preliminary instructions already in the juror's notebook. When each juror has a copy of the final instructions, jurors can follow along as the judge reads them out loud. It has been long recognized that people understand material better when they read it at the same time they hear it, according to research by Courtroom Sciences, Inc., of Dallas.

Third, in order to produce easy-to-understand plain-language jury instructions, trial lawyers should take out much of the traditional boilerplate verbiage pervading most sets of instructions and eliminate instructions that are based on common sense or everyday experience. Lawyers should also remove instructions that are properly relegated to argument.

Most lawyers are happy to delete many of the boilerplate jury instructions by joint agreement, with the court's endorsement, so long as the procedure does not give their opponent some type of procedural or appellate advantage.

The jury's finding instructions--in which the court tells jurors that the application of legal principles to certain facts, if proved, requires specific findings on issues the jurors must decide--should contain three sections:

The parties' contentions. Each party should be given free rein to state briefly its contentions in each instruction, with the court exercising oversight. For example, in a patent infringement suit, the patent holder might have a contention in an instruction on ownership: "ABC Co. contends that it owns the `123 patent' through an assignment from the named inventors, Dr. X and Dr. Y, to DEF Co. and a valid transfer from DEF Co. to ABC Co."

Questions you must answer (the interrogatories). Example (in the case of ABC Co. v. PQR Corp.): Has ABC Co. proven by a preponderance of the evidence that it owns the `123 patent'? YES--(for ABC Co.) or NO--(for PQR Corp.)."

By identifying the prevailing party in each possible answer, the court can try to ensure that there are no unintended answers stemming from juror confusion or misunderstanding.

The law to be applied in answering the above questions. The law should be stated in lay language, using the names of the parties and referring, where applicable, to specific witnesses or evidence. For example, "Concerning the ownership of the `123 patent,' you must consider if the ABC Co. has proven by a preponderance of the evidence that it was the assignee of the `123 patent."'

Lessons learned

Several lessons become readily apparent when trying complex lawsuits. Most important, aggressive participation by the trial judge in the early pre-trial drafting and approving of preliminary and proposed final jury instructions goes a long way toward allowing counsel to simplify complex subject matter and trial issues and thereby reduce possible confusion and misunderstanding for jurors.

The notion that jury instructions cannot be drafted before the judge hears the evidence is not accurate. Exhaustive pretrial discovery in most complex cases enables opposing parties to frame most of the reasonably anticipated jury instructions months before the trial.

Further, by resolving disputes over the form and content of jury instructions early on, the court can enable each party to assess the value of the case more accurately and to plan efficiently what evidence to present. But court orders that the parties must confer and agree on jury instructions just do not work well without active participation from the presiding trial judge, including early and decisive rulings on any disputed instructions.

Many law practitioners believe that pretrial and trial procedures are carved in stone and beyond meaningful improvement, but innovations can enhance the trial process. This is particularly appropriate in high-tech cases where the parties have often built their professional reputations on finding more efficient ways to do established things.

With forward-looking judges and ingenuity from counsel, unique approaches beyond those suggested here will surely follow. The innovations discussed in this article not only help the lawyers trying the case, but--more important--they enable the jury to better understand a complex case and render a verdict based on greater comprehension of the issues in dispute.

John C. Lowe is a partner at Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, D.C.