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Advisability and practical considerations of court-imposed time limits on trial.

With the ever-increasing number of docket filings, it is becoming more common for courts to impose time limits during trial. This should not be surprising. For decades circuit courts have imposed page limits on written briefs. The United States Supreme Court and virtually all federal and state appellate courts restrict the length of oral arguments. And now more than ever, trial courts are imposing time limits to speed up the pace of civil trials.

Though it can be challenging at times to narrow the scope of a complex case, trial lawyers who have participated in time-limited trials generally appreciate the value of being disciplined to streamline their presentation of evidence. Carefully planning who will testify, for how long, and on what subjects promotes efficiency for the courts, forces the lawyers to focus on the evidence that really matters, and helps to keep the attention of jurors on the most significant important witness testimony and documentary evidence.

I. Time Limitations in Practice

The growing trend of imposing time limitations at trial is perhaps most evident in recent bellwether trials that have occurred in mass tort litigation. For example, the Honorable Eldon E. Fallon, a highly regarded judge in the United States District Court for the Eastern District of Louisiana utilized such techniques as the MDL judge in several pharmaceutical product liability mass torts including In re Propulsid Products Liability Litigation (MDL 1355) and In re Vioxx Products Liability Litigation (MDL 1657). (1) By the time trials started in the Vioxx MDL, the parties had taken hundreds of hours of deposition testimony, Merck had produced millions of pages of documents, and many legal and factual issues remained in dispute. Nevertheless, in each of the six MDL bellwether Vioxx trials, Judge Fallon gave each side a maximum of seven days to present their case. The six Vioxx bellwether trials were each tried in less than three weeks, resulting in one hung jury, four defense verdicts and one remittitur. The one Propulsid bellwether trial was tried in a total of eight days and resulted in a defense verdict. (2)

At the outset of these bellwether trials, Judge Fallon emphasized to the jury and the lawyers that he appreciates and values the jury's time. He would not and did not tolerate short trial days. In the Vioxx trials, if the jurors were willing to work on Saturdays, he expected the lawyers and witnesses to do so as well. Judge Fallon required that cross-examination begin even if the direct ended late in the day. He insisted that the next witness had to be called after re-redirect regardless of how much time remained before the next-scheduled break or the trial day's end. Judge Fallon did not tolerate cumulative fact and expert testimony, and he properly enforced evidentiary rules such as necessary foundation before fact witnesses could be cross-examined on evidence such as internal company documents.

Other MDL judges have utilized similar techniques in bellwether trials, often resulting in defense verdicts. (3)

Judge Lynn B. Winmill of the United States District Court for Idaho allocated four months to the trial of a bellwether trial involving 4 of the 110 plaintiff groups in a mass tort products liability case filed against multiple defendants including the United States Bureau of Land Management and DuPont. This was after several years of discovery and the production of millions of pages of documents and hundreds of depositions. Following trial, the judge put the remainder of deposition discovery on a time allocation, which set forth the total time the parties could spend for all depositions to be taken, without addressing individual time limits, and allocated six months for the damages trials of all other plaintiffs. Both the discovery and trial time was allocated in minutes assigned by the court. The bellwether trial ended as determined by the court, as did the discovery, while the final trial settled just prior to trial.

Judges outside the mass tort products liability context have also imposed time limits for trials. Last year, Judge Alvin K. Hellerstein of the United States District Court for the Southern District of New York announced his plan to impose a one-month time limit for trial in a wrongful death case filed by the family of Mark Bavis, a passenger on the second plane to hit the World Trade Center on September 11, 2001. (4) United Airlines and several other parties were defendants. Had the case not settled, each side would have had no more than 50 to 60 hours to present its evidence. The trial was to be timed in minutes, not days, much like a chess match with the clock ticking whenever a lawyer questions a witness or argues to the jury. As is often the case, lawyers for both sides argued that such a time limit was unrealistic for a case of that magnitude. Nevertheless, Judge Hellerstein fully intended to impose a strict time limit to avoid a protracted trial and to keep the jury focused. The court reportedly reasoned that "once the jury gets bored with your presentation, you've lost the significant power of persuasion."

II. Standards Supporting Time Limitation

When imposing time limits at trial, federal district courts rely on various sources, including FED. R. EVID. Rule 611(a), which provides that:

The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) Make those procedures effective for determining the truth;

(2) Avoid wasting time; and

(3) Protect witnesses from harassment or undue embarrassment. (5)

State trial courts are afforded similar discretion under state or local procedure and/or evidence rules, or common law principles. (6)

While there are numerous cases in which the appellate court has been critical of the time limits imposed by the trial court, no cases have been identified in which the trial court was actually reversed because of the time limits imposed. (7) The language used to support claims against time limits is dicta:
   Trepel's argument is impassioned
   but unpersuasive. Although Trepel
   cites dicta from three cases
   disfavoring time limits, see
   Monotype Corp. v. Int'l Typeface
   Corp., 43 F.3d 443, 451 (9th Cir.
   1994); McKnight v. Gen. Motors
   Corp., 908 F.2d 104, 114-115 (7th
   Cir. 1990); and Flaminio v. Honda
   Motor Co., 733 F.2d 463, 473 (7th
   Cir. 1984), in none of these cases
   did the imposition of the time limit
   lead to a reversal. Similarly, we find
   no cause to reverse here. (8)

Even those cases which have been critical of the trial court's actions have not reversed them. In Pierce v. County of Orange, for example, the court found that imposing rigid time limits did not constitute reversible error:
   Accordingly, we join the Seventh
   Circuit in disapproving rigid hour
   limits such as those initially
   suggested here. [citing Flaminio].


   [W]e conclude that [Plaintiffs] have
   not shown that "there was harm
   incurred as a result" of the time
   limit. [citing Monotype]. Plaintiffs
   objected to the time limitation but
   did not specify what evidence they
   would have presented if more time
   had been allotted, nor did they
   request additional time. (9)

Similarly, in McKnight v. GMC, the court found that the error associated with firm limits did not merit reversal:
   But there was one error that in a case
   as close as this potentially was grave.
   That is the hourglass method
   employed by the district judge to
   limit the length of the trial.... By the
   time the plaintiff rested, GM had only
   49 minutes in which to put on its four
   remaining witnesses.... It was at
   this point that the judge gave General
   Motors the extra half hour, but 79
   minutes is still a very short time for
   four witnesses and we were told at
   argument without contradiction that
   these witnesses ran to and from the
   stand in a desperate effort to complete
   their testimony before time was

   Flaminio v. Honda Motor Co., 733
   F.2d 463, 473 (7th Cir. 1984),
   disapproved the practice of placing
   rigid hour limits on a trial, while
   recognizing that in this age of
   swollen federal caseloads district
   judges must manage their trials with
   an iron hand--must scrutinize the
   witness list and the exhibit list with
   a beady eye and ruthlessly prune
   redundant or marginal evidence. We
   do not reverse district judges who do
   this. Northern Indiana Public
   Service Co. v. Carbon County Coal
   Co., 799 F.2d 265, 269 (7th Cir.
   1986). We commend them. But to
   impose arbitrary limitations, enforce
   them inflexibly, and by these means
   turn a federal trial into a relay race is
   to sacrifice too much of one good--accuracy
   of factual determination--to
   obtain another--minimization of
   the time and expense of litigation.

   If General Motors had preserved the
   issue of undue curtailment of trial
   time, we would reverse and order a
   new trial. But it has not preserved it,
   and this time its waiver is fatal. It
   asked for an extra hour and was
   given thirty minutes, so it must show
   what it would have done with the
   other thirty minutes if it had been
   given them. Id. at 270. Neither in the
   district court nor in this court has
   General Motors attempted such a
   showing. The spectacle of witnesses
   running to and from the witness
   stand is unseemly, but General
   Motors does not argue that the
   spectacle was prejudicial to it. We
   do not reverse for harmless errors.
   Fed. R. Civ. P. 61. McKnight is
   entitled to the award of back pay
   that the jury gave him. (10)

Both McKnight and Pierce cite the Seventh Circuit case of Flaminio v. Honda Motor Company, in which the court criticized the imposition of strict hour limits while ultimately affirming the judgment of the district court:
   Finally, Flaminio argues that the trial
   judge unduly curtailed his
   opportunity to present his case by
   announcing at the outset of the trial
   that the trial would be allowed to take
   only 33 hours--18 for the plaintiffs
   and 15 for the defendants. HN15
   Although in this era of crowded
   district court dockets federal district
   judges not only may but must
   exercise strict control over the length
   of trials, and are therefore entirely
   within their rights in setting
   reasonable deadlines in advance and
   holding the parties to them, see, e.g.,
   MCI Communications Corp. v.
   American Tel. & Tel. Co., 708 F.2d
   1081, 1170-72 (7th Cir. 1983), we
   disapprove of the practice of placing
   rigid hour limits on a trial. The effect
   is to engender an unhealthy
   preoccupation with the clock,
   evidenced in this case by the
   extended discussion between counsel
   and the district judge at the outset of
   the trial over the precise method of
   time-keeping--a method that made
   the computation of time almost as
   complicated as in a professional
   football game. But our disagreement
   with the district judge's method of
   economizing on trial time does not
   warrant reversal of his judgment.
   The 18 hours that the plaintiffs were
   given to put in their case were not an
   unreasonable period in relation to the
   complexity of the issues, and in any
   event the plaintiffs have failed to
   indicate what evidence they would
   have put in, or cross-examination
   they would have conducted, if they
   had had more time.... We trust,
   however, that in the future the able
   district judge will not try to slice the
   loaf so thinly. (11)

III. The Benefits and Costs of Time-Limited Trials

As with most any trial management procedure, there are advantages and disadvantages to time-limited trials. The following are among the benefits from the defense perspective:

* Time limits force the defense to focus on what's important. Time limits necessarily cause defense lawyers to plan rather than simply react during trial. For example, time limits impose the necessary discipline of a focused cross-examination. Deciding what not to cover on cross can be at least as important as deciding what to cover, and time limits facilitate that strategic analysis well in advance of trial. With respect to planning its case-in-chief, defense counsel will have to focus on developing the most compelling witness testimony, judiciously allocating subject matter among expert witnesses, using summary exhibits or demonstratives, and introducing into evidence only a subset of the most relevant documents from an inevitably overbroad exhibit list. By contrast, without time constraints, defense lawyers may be tempted to elicit redundant testimony from all defense experts. It is rarely the case, however, that experts are equally versed in the scientific and medical literature on subjects such as general causation. Exposing unqualified experts to cross-examination on such subjects runs the risk of jeopardizing the witness's credibility in their true areas of expertise. In a time-limited trial, that risk is significantly limited because defense counsel must carefully consider and delineate the scope of testimony well before the witness takes the stand. In short, it is our experience that advanced planning based on the available time inevitably leads to a cleaner, sharper, and better-tried defense case.

* Time limits ensure the defense has a fair opportunity to put on its defense without being accused of wasting time. Time-limited trials are perhaps the only way to ensure that the court reserves a fair amount of time for the defense to present its case. Most juries are told at the outset of a trial that a trial will last a certain period of time, say four weeks. A plaintiff that uses up three weeks in its case-in-chief obviously prejudices the defendant if it were given only one week to present its defense. Similarly, jurors may hold it against the defense if the trial ends up taking longer than the promised period of time. Even where judges attempt to explain delays (e.g., sidebars or arguments during extended breaks), jurors are likely to tolerate such delays early in the trial but their patience will wane during the defense case as the trial goes on. If a defendant is guaranteed a certain amount of time to present its case, then defense counsel will be able to do so by saving necessary time throughout the trial. Thus, both on the merits and in terms of engendering goodwill from jurors, defendants seem to score more points by efficiently presenting their evidence and then sitting down.

* Shorter trials help to maintain the jury's attention. Time-limited trials help keep the jury focused and engaged. More than ever, jurors today are used to getting answers and gathering information within seconds on the Internet. They expect to resolve issues sooner rather than later. If jurors are forced to sit through a prolonged trial, their attention and ability to process key information inevitably will fade. In fact, shorter trials limit the chance that jurors lose focus as a result of sheer boredom.

* Time limits reduce the likelihood of jurors being excused for hardship during voir dire or during trial. While judges have become less sympathetic to jurors' pleas to be excused from jury duty on the basis of work commitments, if a case is initially estimated to take a month or more, it is more likely that pro-defense jurors may be released from the panel because they have a longstanding family obligation, purchased tickets for a business trip, or are better able to articulate a legitimate hardship created by a trial with no end date in sight. With a predictably shorter trial, it will be much harder for pro-defense jurors to get excused for an alleged hardship. For those jurors and alternatives who are impaneled, a longer trial creates more of a risk that that they will become ill or encounter an unforeseen conflict that may prevent them from completing their jury service. Too many dismissed jurors or alternatives may lead to a mistrial, wasted expense for the client, and a retrial where plaintiff's counsel would be armed with a roadmap of the defense's strategy.

* Time limits may hamper the plaintiff's ability to meet its burden of proof and/or cross-examine defense witnesses. Time limits can create a number of problems for a plaintiff who mismanages its clock, in the extreme case, a plaintiff may neglect to introduce necessary evidence or otherwise fail to address all the elements of its claims. More commonly, plaintiff's counsel who is not used to working within time limits will be inclined to spend far too much time putting on certain witnesses, laying foundation for an expert's expertise, or simply trying to introduce the jury to complex subjects for the very first time. As long as the court does not change the rules of the trial midstream, a defendant will benefit from plaintiffs time mismanagement in a number of ways, including the fact that opposing counsel will have less time to cross-examine defense witnesses.

* Time limits restrict the number of video depositions played at trial In the mass tort context in particular, the playing of video depositions of unavailable company witnesses during trial is becoming increasingly common. If left unconstrained, many plaintiff lawyers would like nothing more than to play dozens of hours of deposition testimony where one witness after another is asked about the same emails with the same inflammatory language highlighted for the jury. In a shorter trial, a plaintiff is not only forced to narrow the scope of proffered deposition testimony but also the judge, in the interest of time, will sustain a defense objection on the basis of cumulative evidence. For example, a defendant can argue that each time a video deposition is played showing the same allegedly "bad company" documents, the defense must spend time counter-designating testimony to put the evidence in its proper context.

* Time limits reduce cumulative testimony by experts. Just as timed trials limit redundant testimony from fact witnesses, they likewise discourage judges from allowing cumulative testimony by expert witnesses. If, for example, the jury has already heard one expert testify at length about whether a medicine causes a certain side effect or that the defendant company has violated FDA regulations, a defendant should not be required to use up its time cross-examining another witness about the same topics. In other words, a court may be more willing to restrict cumulative expert testimony in the setting of a time-limited trial.

* Time limits motivate judges to control evasive adverse witnesses. In our experience, judges presiding over time-restricted trials are particularly receptive to control an evasive and nonresponsive witness. Even where a judge is not proactive in controlling the witness, the cross-examiner should remind long-winded or filibustering witnesses about the need to be responsive given the time limits in the case. If the evasiveness continues, counsel should ask the court to instruct the witness accordingly. Again, judges appear to be particularly receptive to this request in a time-limited trial. This approach may well create the impression that, unlike the plaintiff's witness, the defense is mindful of and respects the jury's and judge's time.

* Time limits provide clients with some logistical and budget certainty. Clients and client representatives appreciate predictability in an otherwise unpredictable trial environment. A time-limited trial gives in-house counsel a better opportunity to plan and coordinate with the company's trial witnesses. It also helps outside counsel to coordinate the schedules of expert witnesses, as opposed to having to keep them on "standby" for several weeks at a time. Even though it is obviously impossible to predict a verdict with certainty, a shorter, time-limited trial can at least provide the client with the ability to budget for the cost of trying the case itself.

Notwithstanding the benefits described above, time limits during trial can be detrimental to defendants in certain circumstances, particularly where the limits are unfair or not properly enforced by the court.

* Inadequate total time limits and/or allocation can prejudice defendants. Time constraints during trial have the potential to prejudice defendants if the overall time is too short or if the time is unfairly allocated among the parties. With respect to the allocation, the unfairness may arise in a single defendant case (e.g., 75% to plaintiff and 25% to defendant) or in a multi-defendant case (e.g., 50% to plaintiff and 50% to be split among defendants). To prevent this, the parties should make every effort to present a realistic expectation of the time needed to present their case, and the court should take into account the factual complexity of the case and such factors as the number of parties, legal claims, and witnesses per party. Fairly allocating time is even more difficult in cases involving multiple defendants, particularly if some defendants are adverse (or could be adverse) to each other. For example, one defendant may be the plaintiff's primary target whereas another is in the case solely to defeat diversity. In that scenario, it would be unfair for the court to split the allocated time evenly among the defendants. Similarly, in cases with multiple defendants, the first defendant to present has the ability to drive the direction of the defense for all other defendants. This can leave the remaining defendants at the mercy of the first defendant's decisions (or mistakes) as to how best to present any duplicate or redundant witness/evidence. And the court may, under its inherent power to control the presentation of evidence, prevent duplicate presentations if the interests of the parties are deemed to be essentially identical. This can play real havoc on defense theories of the case, especially where there are multiple defendants who do not share a common defense theme. There is no real fix for this situation, and although it exists whether or not the parties are on the clock, the clock seems to emphasize it due to time restrictions.

* Unenforced time limits are highly prejudicial and defeat the very purpose of time-restricted trials. Another potential problem for defendants can arise if the pre-established time limits are not strictly enforced by the court. Courts are required to be reasonable in imposing time limitations and to be flexible if good cause exists for an extension. (12) This dichotomy presents the risk that a plaintiff can engage in gamesmanship by asking the court for more time during a defendant's case-in-chief. If, for example, a plaintiff uses up all of its allotted time before the defense calls its final witness, and then requests (and is granted) additional time to cross-examine the defendant's last witnesses, this would be unfairly prejudicial to the defendant who, unlike the plaintiff, has gauged its time properly throughout the trial. Had defense counsel known the court would grant plaintiff additional time, they might have used additional time to cross-examine plaintiff's witnesses or otherwise approached plaintiff's case-in-chief in a different manner. Once time limits are set, they simply must be enforced, or their use is unfair to the party who abided by its limits and the entire process is virtually meaningless.

IV. Practical Suggestions in Time Limited Trials

There are, of course, a number of practical steps defendants should take before and during trial to limit the potential downside of time-restricted trials.

Define the Rules. As indicated in more detail in Table 2 below, defendants should ensure that all details pertaining to the time procedures are spelled out in writing prior to trial, and that all parties agree to the time keeping procedures. It must be determined from the outset whether opening statements, closing arguments, voir dire, etc. will be included in a party's time. (13)

Set Realistic Targets. During the pretrial conference, defense counsel should be realistic and specific when the court asks for input about the identity of witnesses, the nature of their testimony, and the expected duration of their examinations.

Abide by the Rules. Parties must also agree that all time limits and procedures will be strictly enforced, and be prepared to frequently remind the judge and preserve the record for appeal if the rules are not followed.

V. Conclusion

With the docketing and time demands placed on courts, the practice of trying cases on the clock is increasing especially in complex cases that would otherwise result in very lengthy trials. While it may be a necessary practice, it requires serious thought and attention by the court and the parties so that it accomplishes its goal and is fair to all involved.

We believe the discipline imposed by timed trials is a good thing. It is good for the judges, for juries, for the lawyers, and for clients. As long as the parties and the court are careful to set and enforce reasonable limits, time-restricted trials are likely to be advantageous to defendants whose lawyers are well-organized and know how to present their evidence clearly and concisely.

(1) In re Propulsid Prods. Liab. Litig., MDL No. 1355, 2000 WL 35621417 (J.P.M.L. Aug 7, 2000); In re Vioxx Prods. Liab. Litig., 360 F. Supp.2d 1352 (J.P.M.L. 2005).

(2) Diez v. Janssen Pharmaceutica, Inc., No. 00 2577 (E.D. La. filed Aug. 30, 2000).

(3) For example, in an MDL involving Merck's prescription drug Fosamax[R] (S.D.N.Y., MDL 1789), Judge John F. Keenan has presided over several trials limiting each side to approximately six trial days. Maley v. Merck & Co. Inc., No. 06-cv-4110 (S.D.N.Y.) (defense verdict); Graves v. Merck & Co., Inc., No. 1:06-CV-05513-JFK (S.D.N.Y.) (defense verdict); Secrest v. Merck & Co., Inc., No. 06 MD 1789-JFK (S.D.N.Y.) (verdict for Merck); Boles v. Merck & Co., Inc., No. 1:06-cv-09455-JFK (S.D.N.Y.) (initially resulted in a mistrial; retrial resulted in plaintiff verdict, followed by a remitter and damages retrial set for September 2012).

(4) Bavis v. United Air Lines, Inc., No. 02-CV-7154-AKH (S.D.N.Y.).

(5) FED. R. EVID. 611(a); see also Gregory P. Joseph, American Bar Assoc. Princ. for Juries & Jury Trials, SL 044 ALI-ABA 653 (Oct. 2005) (citing FED. R. CIV. P. 16(c)(4), (c)(15) ("the court may take appropriate action, with respect to ... an order establishing a reasonable limit on the time allowed for presentation of evidence")); FED. R. EVID. 403, 611(a), 201, and MANUAL FOR COMPLEX LITIGATION (THIRD) [section][section] 21.653, 22.35 (1995) (provides grounds for time limits); MCI Communications v. American Tel. & Tel. Co., 708 F.2d 1081, 1171 (7th Cir. 1983) (no abuse of discretion to limit antitrust trial to 26 days even where parties estimated an eight- to nine-month trial). See also Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 608-611 (3rd Cir. 1995); Crabtree v. Nat'l Steel Corp., 261 F.3d 715, 720-721 (7th Cir. 2001); Johnson v. Ashby, 808 F.2d 676, 678-679 (8th Cir. 1987); Gen. Signal Corp. v. MCI Telecomm. Corp., 66 F.3d 1500, 1508-1509 (9th Cir. 1995).

(6) Further evidence of the judiciary's interest in promoting efficiency in litigation is the growing tendency of courts to implement time restrictions in pretrial proceedings. For example, trial courts are issuing more tailored and aggressive scheduling orders to expedite discovery and, in some cases, promote prompt resolution of meritless claims. Depositions may also be restricted (sometimes even further than contemplated by the Federal Rules of Civil Procedure) by limiting the number of hours for all depositions in a case, or setting a deadline by which all depositions must be completed.

(7) In Secretary of Labor v. DeSisto, 929 F.2d 789, 794-796 (1st Cir. 1991), the First Circuit ordered a new trial (despite the fact that neither side had objected) when the trial court had limited each side to one witness without a Rule 403 inquiry, but the decision was based on a witness limit, not a time limit.

(8) Trepel v. Roadway Express, Inc., 40 Fed. Appx. 104, 108 (6th Cir. 2002).

(9) Pierce v. County of Orange, 526 F.3d 1190, 1200 (9th Cir. 2008) (upholding trial court's limit of three days per side).

(10) McKnight v. GMC, 908 F.2d 104, 115 (7th Cir. Wis. 1990) (superseded by statute on different grounds) (not reversing because issue was not preserved for appeal).

(11) Flaminio v. Honda Motor Co., 733 F.2d 463, 473 (7th Cir. Wis. 1984) (emphasis added).

(12) See, e.g., Gregory P. Joseph, American Car Assoc. Princ. For Juries & Jury Trials, SL044 ALI-ABA 653 (Oct. 2005); MANUAL FOR COMPLEX LITIGATION (FOURTH) [section][section] 11.644, 12.35 (2004).

(13) It is our experience that voir dire is generally excluded from the parties' time limits, but is often subject to its own limit.

Andrew L. Goldman is partner in the law firm of Goldman Ismail Tomaselli Brennan & Baum LLP in its Chicago, Illinois office. He concentrates on complex commercial litigation matters, with a particular emphasis' on defending pharmaceutical and medical device companies in products liability and mass" tort litigation. He is a member of the International Association of Defense Counsel. Mr. Goldman has extensive bench and jury trial experience in courts throughout the United States including federal and state courts in Illinois, Louisiana, New York, Florida, California and Connecticut. J. Walter Sinclair is a partner in the law firm of Stoel Rives LLP in its' Boise, Idaho and Seattle, Washington offices'. He concentrates on corporate and complex litigation matters associated with contract disputes, product liability (including agricultural product liability), antitrust, class action and securities litigation. He is a past president of the International Association of Defense Counsel and a fellow in the American College of Trial Lawyers and the International Academy of Trial Lawyers. Mr. Sinclair has extensive bench and jury trial experience in courts throughout the United States including federal and state courts in Idaho, Washington, Oregon, Nevada, Utah, Arizona, Kansas, Michigan and New York.
Table 1: Pros & Cons of Time-Limited
Trials for Defendants


* Focuses case on the most "important"

* Fair opportunity to present defense case

* Keeps jury's attention and fosters efficient

* Protects against pro-defense juror

* May restrict a plaintiff's ability to cross

* Less cumulative "bad company" conduct

* Less cumulative expert testimony

* Helps to control evasive witnesses on

* Provides some logistical and budget


* Total time can be unreasonably short

* Time allocations may be inequitable,
especially in cases involving multiple

* Unenforced time limits are highly

Table 2: Key Considerations to Limit
Defendants' Risks of Time-Limited Trials

1. Reach a pre-trial stipulation or agreement
with opposing counsel regarding:

   a. Total number of hours

   b. Fair allocation of hours among each

   c. Time-tracking procedures

      i. Everything a party does, from
         openings through summation,
         should be on the clock. The
         clock ticks whenever its lawyer
         rises to question a witness or
         argue to the jury.

     ii. Designated deposition testimony
         counts against that side's
         allocated time.

         I. Thus, plaintiff's
            affirmative designations
            should count against
            plaintiff, and defendant's
            counter designations
            should count against

    iii. Objections and sidebars are
         excluded. Judges expect
         objections in federal court to be
         short, and it is simply too
         burdensome for the court to
         track time during objections.

     iv. The clock should be managed
         by court personnel who will
         inform the parties at the end of
         each day how much remaining
         time is available per party.

   d. Strict enforcement of time limits

      i. Include a clear statement that
         time limits will be strictly
         enforced absent consent by
         both parties during trial.

2. During the pretrial conference, parties
should agree on the record that the procedures
are fair, and that all time limits and procedures
will be strictly enforced.

3. Remain cognizant of time limitations
throughout the trial.

4. Remind the judge frequently if the other
side is deviating from the rules and preserve
the record for appeal if the rules are not
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Author:Goldman, Andrew L.; Sinclair, J. Walter
Publication:Defense Counsel Journal
Date:Oct 1, 2012
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