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American Bar Association Section Annual Conference - Section of Litigation

May 5, 2017

A Brief History of Time Limits in Civil Jury Trials By Doris Cheng and Christine Nowland1

Codification of Time Limits in Civil Jury Trials

The concept of time limitations for jury trials had been informally applied well

before it was formally codified in the Federal Rules of Civil Procedure in 1993. Specifically,

Rule 16(c)(2)(O) of the Federal Rules of Civil Procedure was introduced to permit trial

judges to establish time limits for the presentation of evidence by court order at the

pretrial conference.2 This subsection states: “At any pretrial conference, the court may

consider and take appropriate action on the following matters …. Establishing a reasonable

limit on the time allowed to present evidence ….”

The 1993 amendment was proposed against the backdrop of efforts to shorten civil

trials in federal courts. At that time, six District Courts in Delaware, Illinois, Massachusetts,

Texas and Wisconsin explicitly authorized trial judges to impose time limits as part of their

Civil Justice Reform Act of 1990.3 The Advisory Committee of the Federal Rules of Civil

Procedure stated that the amendment “supplements the power of the court to limit the

extent of evidence under Rules 403 and 611(a) of the Federal Rules of Evidence ….” It

further instructed that time limits “must be reasonable under the circumstances, and

ordinarily the court should impose them only after receiving appropriate submissions from

the parties outlining the nature of the testimony expected to be presented through various

witnesses, and the expected duration of direct and cross examination.”4

The authority to restrict trial times is not limited to federal cases; it has been

imputed to most state courts as well.5

On the one hand, limiting the presentation of evidence in civil cases appeared to give

short shrift to civil jury trials. In the decade preceding the 1993 amendment to Rule 16, the

number of jury trial days per judgment across the country steadily declined from roughly

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83 days to 52 days.6 Possible explanations for the dwindling civil jury trial included the

increasing pressure from the criminal docket and the increasing pre-trial management

responsibilities related to complex civil cases.7 The 1983 amendments to Rule 16 and 26

fundamentally changed the role of federal judges in civil litigation “from passive umpire to

managerial activists,” by requiring judges to make scheduling and case management an

express goal of the pretrial procedure.8

On the other hand, time limitations have incentivized trial lawyers to proceed to

jury trial. As jury trials have become more and more expensive and time consuming, many

parties have found it more economically prudent to settle or arbitrate, rather than try,

cases. The Administrative Office of the U.S. Courts maintains statistics about the number of

filings and how cases are disposed. The Administrative Office report shows that over the

past five years, 285,848 (on average) civil cases have been per year.9 But less than one

percent of those cases are disposed of by trial. In 2016, there were 4,572 federal civil trials

(of which 1758 were jury trials). In 2015, there were 4,734 federal civil trials (of which

1882 were jury trials). The American Board of Trial Advocates (“ABOTA”), an organization

dedicated to preserving the Seventh Amendment right to trial by jury, recognized that

settlement is not a reliable means of achieving justice because of the potentially narrow

interests of those controlling the litigation. Trials serve to keep people accountable by

taking away absolute power vested in any single ruler, and thus, a strong judicial branch

requires a healthy jury trial option. In 2012, ABOTA resolved to support the concept of

Expedited Jury Trials (“EJT”) because “the number of civil cases in the United States

actually tried to a jury is rapidly decreasing and that litigation costs and delays are a major

contributor to the reduction in the number of civil jury trials.”10

The concept of the EJT was an outgrowth of the Short, Summary, and Expedited Civil

Action Programs (“SSE Programs”), which derived from the general notion of time

limitations (as codified in Rule 16) and specifically from alternative dispute resolution

methods originating in the Northern District of Ohio in the 1970s. Today, the specific rules

of SSE Programs vary from one jurisdiction to the next, and are referred to by several

names, including summary jury trial, expedited jury trial, and short jury trial.11 Almost all

of the SSE Programs contain the following critical features: (1) the length of the trial is

limited to one or two days; (2) the trial date is certain and fixed; (3) the entire litigation

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process, not just the trial, is expedited; (4) the program encourages maximum evidentiary

agreements and stipulations; and (5) the programs are either partially or wholly

voluntary.12 As of 2016, five federal districts and twenty-three states have adopted at least

one SSE program.13

Whether the case is subject to time limits tailored by a singly assigned judge or

crafted by an SSE program, trial lawyers will have to perfect the art of brevity.

Origins of the SSE Programs

U.S. District Court Judge Thomas Lambros (ret.) (U.S. District Court Cleveland, Ohio)

is credited with the original idea for a dispute resolution movement that retained the

important role of the juror as finder of fact.14 He first implemented a summary jury trial in

the late 1970s as a settlement tool to resolve the parties’ respective claims that each could

do better than the other at trial.15 He broke through the stalemate by conducting a live

demonstration that showed how a jury would respond to their dispute. The procedure was

essentially an abbreviated non-binding jury trial before a six-person jury selected from a

ten-person panel. 16 The success of the Summary Jury Trial is rooted in “the age old

jurisprudential concept of trial by jury.” Judge Lambros explained: “It is this concept, the

expression of opinion by a jury of peers, which has molded our judicial system and which

permits the parties to believe that their story has been told, and a decision reached.”17

From 1980 to 1984, the Northern District of Ohio selected 88 cases for summary

jury trials.18 Almost half of the chosen cases settled before the summary jury trial. Ninety-

two percent (92%) settled after the summary jury trial.19 Judge Lambros estimated that

the summary jury trials produced actual cost savings of $73,702. This was based upon

average cost of $43 per day for a petit juror in the Northern District of Ohio in 1983.20

After Judge Lambros introduced the Summary Jury Trial, many state courts and a

few federal districts implemented variations of Lambros’ procedure to improve civil case

management. As of 1984, Judge Lambros reported that this method was being

implemented in certain District Courts in Montana, Massachusetts, Pennsylvania,

Oklahoma, Michigan, and Colorado. Additionally, courts from California to Florida were

inquiring about the procedure.21

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State and Federal Timed Jury Trials Today

In all federal civil cases, time limitations will be determined by the trial judge.

Consistent with the Advisory Committee Comments in Rule 16, the trial judge will evaluate

the number of witnesses, nature of the testimony expected to be presented through each

witness, and the expected duration of the examinations. A time frame can be reasonably

custom tailored to the case. The trial judge has authority to add or subtract time as the

case.

The SSE Programs have less flexibility and are non-appealable, and so, case selection

for these programs is critical. Cases that are most suitable for SSE Programs have the

following characteristics: (1) single or limited issues; (2) many facts are undisputed; (3)

live expert testimony is not pivotal; (4) limited number of witnesses; (5) limited damages

or limited recoverability of damages (e.g. due to limited insurance coverage or viability of

party). Other considerations that make the SSE Program attractive include unavailability of

a party during trial, and the need for a certain trial commencement date.

A. Federal SSE Programs

Although summary jury trial procedures originated in federal court, as of July 2016

only five federal districts have implemented an SSE program.22 The programs adopted by

the Northern District of California, the District of Minnesota, the District of Nevada, the

Western District of Pennsylvania, and the Western District of Washington are all voluntary,

and most are binding with limited grounds for appeal.

The Northern District of California’s program, called the Expedited Trial Procedure,

was enacted in 2011. Like most other SSE programs, the Northern District’s program limits

discovery and trial length, and ensures an expedited trial date. Because participation in the

program is voluntary, parties must execute an “Agreement for Expedited Trial and Request

for Approval.” Pretrial conferences shall be held no later than 150 days after the

agreement, and trial is to be held no later than six months after the agreement is approved

by the court. Absent agreement between the parties, each side’s discovery is limited to ten

interrogatories, ten requests for production, ten requests for admission, fifteen hours of

deposition, and one expert. The case may be tried to a judge or a jury. Juries will consist of

six jurors which may be reduced to five should a juror become unable to serve. The judge

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conducts voir dire and sets time limits for openings and closings, and each side is allowed

three hours to present its case.

B. California’s Expedited Jury Trial Program

California State Courts enacted the Expedited Jury Trials Act in January of 2011.23

The California courts characterize the Expedited Jury Trial as “an alternative, streamlined

method for handling civil actions to promote the speedy and economic resolution of cases

and to conserve judicial resources.”24 The Act requires that the parties waive all rights to

appeal and to move for direct verdict or make any post-trial motions.25 California has

both, a mandatory expedited jury trial program (MEJT) and a voluntary expedited jury trial

program (VEJT). Limited jurisdiction civil cases are subject to MEJT, although parties may

opt out under certain circumstances. There are specific rules for MEJT, which can be found

at Cal. Code of Civ. Proc. § 630.20 – 630.30 and Cal. Rule of Court 3.1546. Specific rules for

VEJT are found at Cal. Code of Civ. Proc. § 603.01 – 630.12 and Cal. Rule of Court 3.1457 and

3.1458. Parties may follow existing discovery rules and procedure or may modify them by

joint stipulation. Pretrial and supplemental evidence exchanges are subject to time

constraints.

In the VEJT, each party has up to five hours in which to complete voir dire and to

present its case.26 The jury shall be composed of eight jurors with no alternates, unless the

parties agreed to fewer jurors. Each side has three preemptory challenges; if there are

more than two parties in a case and more than two sides, as determined by the court, the

parties may request one additional peremptory challenge each.27 A vote of six of the eight

jurors is required for a verdict, and the verdict is binding without any right of appeal or

post-verdict motions.28

In the MEJT, the jury shall be composed of eight jurors and one alternate, unless the

parties agree to fewer jurors.29 Each side has four peremptory challenges, unless the court

permits additional challenge in cases with more than two sides.30 The trial proceeds before

eight jurors, and verdict requires a three-fourths agreement.31 The presiding judge is

responsible for assigning a judicial officer. The Court may assign a civil court judge or a

temporary judge to conduct the expedited trial. The trial length is limited to five hours per

side, including voir dire. MEJT verdicts are appealable subject to any high/low agreements,

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whereas the right to bring appeal or post-trial motions on VEJT verdicts is waived except

on limited grounds.

C. Other States’ Approaches to SSE Programs

True to Judge Lambros’s original vision, SSE programs vary greatly across the

country, and none implement identical procedures. While California and New York

characterize their programs as streamlined jury trials, the programs in Arizona’s Maricopa

County, Indiana, and Nevada are explicitly affiliated with the states’ ADR programs. See

attached Exhibit A for a comparison chart of these six Summary Jury Trial Programs.32

Another element that differs widely among SSE programs is the presiding judicial

officer. Nevada’s ADR commissioner assigns a judge pro tempore. Maricopa County also

assigns a judge pro tempore. Under North Carolina and South Carolina’s programs, the

presiding officer is a referee or Special Hearing Officer selected by the parties. Multnomah

County Oregon assigns expedited jury trials to circuit court judges.

Other states set limitations unique to all other current SSE programs. Nevada caps

attorneys’ fees at $3,000 and expert witness fee recovery at $500. Indiana limits jury

deliberation time.

Finally, most jurisdictions discourage or prohibit live witnesses. New Hampshire,

North Carolina, Ohio, Pennsylvania, and Tennessee prohibit direct testimony, requiring

evidence to be presented through the attorneys. Oregon’s program, on the other hand,

focuses on expediting pretrial procedures and does not limit trial length (though parties

are encouraged to limit live witness testimony).

Tips for Managing Time

1. Be sure the pre-trial order specifies how time is charged to each party for

objections or sidebars. One court held that “time taken to argue all objections

made by a party which are overruled by the Court shall be deducted from the

objecting party’s time.”33 Alternatively, the court may count the time for

objections toward the party offering the evidence. In that circumstance, a party

may make numerous objections to thwart the available time allotted to the

opposing party. But, the court has inherent power to control and punish

gamesmanship during trial.34

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2. Do not make speaking objections. As a practical matter, avoid any conduct that

diminishes your ability to present evidence in support of your theme and theory.

3. Presumably, the court or the clerk will keep track of the time consumed by each

party. Have someone on your team dedicated to this task to verify timing.

4. Pre-mark as many exhibits as possible.

5. Be cooperative with opposing counsel. Stipulate to the authenticity and

admissibility of exhibits where there is no dispute. Stipulate to facts where there

is no dispute. Do not create unnecessary disputes about the admissibility of

evidence.

6. Create a detailed outline of each witness examination so that you remain on

time. Resist the urge to repeat testimony that has been or will be sufficiently

covered by another witness.

7. Organize citations of all critical statements or deposition testimony of witnesses

so that you are always able to locate important impeachment / inconsistent out-

of-court testimony within 15 seconds or less. If inconsistent information did not

make it on your list of critical testimony, then it is likely not significant enough

for impeachment.

8. Use exhibits and demonstrative aids during opening statement and closing

argument. Pictures are worth a thousand words. Simple, clean and uncluttered

visual aids work best. This will shorten the amount of time spent talking about

any issue or series of events.

9. Use juror questionnaires. This is encouraged in the California Expedited Jury

Trials Act.

10. Consider using a survey-style set of questions for voir dire. Determine the worst

characteristics of your potentially worst juror. What are the traits that make you

most ready to eject the juror? Fashion polling questions that will elicit those

characteristics. For instance, below is an exemplar of seven questions posed to

each prospective juror in a product liability case:

(1) Do you believe:

a. There are too many lawsuits: Yes Maybe No

b. Jury awards are too high: Yes Maybe No

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c. People are too ready to sue: Yes Maybe No

d. Lawsuits are costing us all too much money? Yes Maybe No

(2) Do you think the monies awarded by jurors today are (choose one):

Excessive Much too large Too large About right

(3) People have different general beliefs about big companies. For each question

below please state whether you lean towards Side A or Side B regarding

product safety.

Side A Companies do an excellent job in

general Companies mostly behave

responsibly and ethically I tend to trust big companies

Side B Companies need to pay more

attention to safety Companies too often put profits

before people I tend to distrust big companies

(4) At the start of this trial, would you find it difficult if not virtually impossible

to believe that a medical device company would knowingly put an

unreasonably dangerous device on the market?

(5) Do you consider yourself to be:

a. Very conservative

b. Conservative

c. Middle of the road

d. Liberal

(6) Do you have any objections to a punitive damage type of monetary award, if

supported by the evidence?

(7) Do any of your life experiences or opinions cause you to start off leaning even

slightly in favor of the company being sued? (If yes, which life experience or

opinion?)

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Exhibit A

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ENDNOTES

1 Doris Cheng is a shareholder with the law firm of Walkup Melodia Kelly & Schoenberger. Christine Knowland is

currently attending UC Hastings College of Law. 2 FED. R. CIV. PROC. 16, Advisory Committee Notes, 1993 Amendment.

3 Patrick E. Longan, The Shot Clock Comes to Trial: Time Limits for Federal Civil Trials, 35 Ariz. L. Rev. 663, 664

(1993). 4 FED. R. CIV. PROC. 16, Advisory Committee Notes, 1993 Amendment.

5 See California Crane Sch., Inc. v. Nat’l Comm’n for Certification of Crane Operators, 171 Cal. Rptr. 3d 752, 760

(Cal. Ct. Appl. 2014) (“[I]t is clearly within the power of the court to impose time limits before the trial

commences.”); See also Sneberger v. Morrison, 776 S.E.2d 156, 164 (W. Va. 2015) (holding the Federal Rules of

Procedure inform the West Virginia Rules of Procedure and therefore permit judges to set time limits on trials). 6 Longan, supra, 35 Ariz. L. Rev. 663, 670-671.

7 Id.

8 FED. R. CIV. PROC. 16 Advisory Committee Notes, 1983 Amendments; Longan, supra, 35 Ariz. L. Rev. at 677-

678. 9 2016 Judicial Business of the United States Courts, U.S. District Courts, Table 4.

10 American Board of Trial Advocates, Resolution #44: Expedited Jury Trials (2012).

11 Paula Hannaford-Agor and Nicole L. Waters, The Evolution of the Summary Jury Trial: A Flexible Tool to Meet a

Variety of Needs, in Future Trends in State Courts 2012, 107 (2012). 12

National Center for State Courts, Civil Action, Vol. 6, No. 1, 3-4 (2007). 13

A Summary of the Short, Summary, and Expedited Civil Action Programs Around the Country, by the Institute for

Advancement of the American Legal System (updated Jul. 15, 2016). 14

Hannaford-Agor and Waters, supra, at 107. 15

Id. 16

Id. 17

103 F.R.D. 461, 468 (1984) 18

Id. at 472-473. 19

Id. 20

Id. at 474. 21

Id. at 475-476. 22

A Summary of the Short, Summary, and Expedited Civil Action Programs Around the Country, by the Institute for

Advancement of the American Legal System (updated Jul. 15, 2016) 23

2010 Cal. Stat. 3660 (codified at Cal. Civ. Proc. Code §§ 630.01-.12). 24

Expedited Jury Trials, available at http://www.courts.ca.gov/12774.htm. 25

CCP § 630.03(e)(2)(A). 26

CCP § 630.03(e)(2)(B). 27

CCP § 630.04. 28

CCP § 630.07 – 630.09. 29

CCP § 630.23(b). 30

CCP § 630.23(c) 31

CCP § 630.26 32

Hannaford-Agor and Waters, supra, at 108. 33

United States v. Hardage, 750 F. Supp. 1460, 1528 (W.D. Okla. 1990). 34

Id. at 1527 (the judge warned attorneys ahead of time that if one side used dilatory tactics the court will deduct

time allotted to one side and award it to the other).