In the News

September 21, 2012
Chicago Daily Law Bulletin

Experts to look at jury system

By: Jerry Crimmins

Additional lawyer statements permitted to a jury during a trial; an opening lecture from the judge on the nature of the claims to be heard; and putting plaintiff and defense expert witnesses on in a back-to-back manner.

These are some proposed reforms to the jury trial that will be debated in the 2012 National Symposium on the American Jury System at Northwestern University School of Law on Oct. 4 and 5.

The Optimal Jury Trial is the theme of the symposium at Northwestern's Thorne Auditorium, 375 E. Chicago Ave. Attendance is free and credit for Continuing Legal Education is available.

The symposium is organized by professor Shari Seidman Diamond of Northwestern's law school and Chief U.S. District Judge James F. Holderman.

The symposium will use videos of two simulated jury trials, one civil, one criminal, "to reveal the challenges faced by the modern jury and how the jury trial can be enhanced with modern jury procedures," an announcement says.

The videos were made in federal courtrooms here through a donation by attorney Robert A. Clifford of Clifford Law Offices, Diamond said.

Clifford acts in some of the videos.

The central crime, which leads to the criminal and civil case, is a bank robbery. The video surveillance tape of the bank robbery is real, she said. But the bank robber in the simulated trial is not the real robber.

The simulated trials are "partially scripted," Diamond said. Holderman presides over the civil case. U.S. District Court Judge Virginia M. Kendall presides over the criminal case.

"Bob Clifford and I played opposing counsel" in the civil case, said Robert L. Byman of Jenner & Block LLP, who is a regent of the American College of Trial Lawyers.

A series of episodes will be shown at the symposium as teaching aids, including a pretrial conference where Byman, Clifford and Holderman discuss if jurors would be allowed to take notes and if jurors would be allowed to ask questions.

In other episodes, "we actually addressed some juries with opportunities for objections and teaching points," Byman said.

"There was a sort of script, but nobody followed it," Byman said. "Trial lawyers don't follow scripts." Holderman ad libbed too. Byman said they "stayed true to the content."

"Judge Holderman is probably less of an actor than Bob and I are … because he's a judge," Byman said. "Trial lawyers have to be actors from time to time."

Byman will also speak in a panel discussion at 9 a.m., the second day of the symposium, on new ways to assist the jury, such as back-to-back expert testimony.

In a long jury trial, Byman said the plaintiff expert witnesses and the defense expert witnesses might testify weeks apart.

In the proposed back-to-back testimony, the defense expert witnesses would follow right after the plaintiff expert witnesses.

"I've never seen it in practice," Byman said. "In theory, it sounds like a good idea. The jury has to decide which expert is right."

Because defense expert witnesses traditionally appear at the end of the trial, and are the last thing the jurors hear, this may aid the defense, Byman said. So back-to-back expert witnesses "as a general principle might be more helpful for plaintiffs than defendants."

James R. Figliulo of Figliulo & Silverman P.C. will appear at the symposium in a panel discussion on improper use of the Internet by jurors at 1:30 p.m., also on the second day.

But Figliulo said he also experienced one of the unusual jury trial reforms — interim statements by attorneys during a trial — two years ago in a civil trial before U.S. District Judge Amy J. St. Eve.

During a nine-week trial, "the judge allowed each side to have 10 minutes per week to address the jury any time they wanted to during the week," Figliulo said.

"You could save it up for Friday afternoon and do a summation of the week or do it at the beginning of the week and do a preview or do it after an important witness."

"It was very effective and I believe the jury liked it a lot," he said.

In that trial, Figliulo said he won a $41.7 million verdict for Flint Hills Resources LLC against BP Amoco Co. in a breach of contract and warranty case.

The symposium runs from 8:45 a.m. to 4:30 p.m. the first day and 9 a.m. to 3:15 p.m. the second day.

Panelists include state and federal judges, attorneys, jury scholars and jurors, including the jury foreperson from the second trial of former Illinois Gov. Rod R. Blagojevich.

Controversial reforms, "realistic reform" and current jury procedures will be discussed. The symposium offers seven sessions, plus other events.