(1) During the ongoing pandemic, are you holding any type of trial or any aspect of trial via videoconference (e.g., out-of-state witness)? Do you expect that to change post-pandemic?
Salinger, J.: In the Spring of 2021, I conducted a two-week bench trial by video conference. Though I hope not to do that again, I am open to conducting parts of a trial by video hookup where necessary or appropriate, for example if a witness lives far away and will testify for a very short time, or cannot reasonably attend in person.
Krupp, J.: I have not held a trial by videoconference. I have had witnesses testify in evidentiary proceedings (e.g., a civil trial, various hearings) by videoconference. In appropriate cases post-pandemic, I would consider allowing a witness to testify by videoconference, particularly where all parties agree. It is often cheaper and easier for all concerned to allow such testimony by videoconference rather than require the parties to take a video deposition to preserve trial testimony of a witness who is otherwise unavailable.
Kazanjian, J.: I am unlikely to do a full trial by videoconference. I have had individual witnesses testify by video conference and would consider that if the parties agree and there is a good reason to proceed that way.
Ricciuti, J.: I have tried one case by videoconference. As much as I strongly prefer in person proceedings, especially trials, I encourage the parties to consider how videoconference can be used effectively to promote efficiency and reduce costs. After all, we routinely permit video depositions to be played at trial; videoconference is similar but allows the jury (or judge in a jury-waived trial) to see the witness is real time, which is often preferable.
(2) Do you typically schedule full-day or half-day trials? Does the schedule differ between jury and bench trials?
Salinger, J.: I usually try BLS cases from 9am to 1pm, whether it is a jury trial or a bench trial. I will go into the afternoon if necessary to accommodate a witness’s scheduling constraints. But generally, while on trial I need the time after 1pm to attend to other cases, by holding hearings and working on decisions. A small quibble: a 9am to 1pm schedule is 2/3 of a 9-4 schedule, after subtracting a short morning break from both and a lunch break from the latter. So, if you refer to a 9-1 schedule as calling for half-days, I may protest.
Krupp, J.: Jury and bench trials are generally held from 9 a.m. to 1 p.m. Over the course of a week, I can and generally will find one or two days when the trial day can go until 4 p.m. Such scheduling issues are usually known and discussed by the time of the final trial conference.
Kazanjian, J.: I usually try cases from 9am -1pm and reserve the afternoons for other business.
Ricciuti, J.: While trials are generally held 9 to 1, I will schedule full day trials when appropriate.
(3) Do you set time limits for trials? If so, under what circumstances and what are they?
Salinger, J.: I have only set time limits for trials a few times, when I was concerned that counsel would fail to complete the trial within the time they promised me and the jury unless I set and enforced explicit time limits. It worked quite well. I keep a running tally of time used and can tell the parties at the end of each trial day where they stand. In each case the parties did not come close to using all their allotted time.
Krupp, J.: I have not had to set time limits. At the final trial conference, I talk about each side’s case in detail, including how long their direct examination will be of key witnesses. I then come up with an estimate of the duration of the trial. I usually tell the prospective jurors how long I expect the case will take based on my discussion with the lawyers. I update the jurors daily about whether we are on schedule. No one wants to upset the jurors’ expectations.
Kazanjian, J.: I have never had to set time limits at a trial. I have limited the length of any filings during trial (e.g., nothing more than 5 pages) so that we do not get bogged down trying to resolve issues. I expect counsel to try to move the case along efficiently for the sake of maintaining the jurors’ attention.
Ricciuti, J.: I have considered, and will consider, time limits in appropriate cases, much as Judge Salinger has outlined.
(4) In general, how do you conduct jury voir dire? Do you allow counsel to ask questions on voir dire?
Salinger, J.: I have always welcomed attorney-conducted voir dire.
If we are using individual voir dire, I will ask a set of questions to the entire venire and then ask additional questions to each prospective juror individually. If I have not excused the juror for cause, I will then let the lawyers follow up on answers to my questions, ask about anything in or missing from the written juror questionnaire, and ask questions on any additional topics that I have approved in advance during the final trial conference.
If we are using panel voir dire, I will conduct more limited questioning of jurors to determine whether they seem able to sit on the jury. Some of that questioning will be done individually, and I let the lawyers follow up on those answers during the individual questioning. But most of the questioning by counsel will take place when they speak with each panel of prospective jurors.
Under either method, I am not a fan of supplemental written juror questionnaires.
Lawyers need to read, understand, and follow Superior Court Rule 6, which governs jury selection; pay particular attention to the provision listing lines of questioning that are improper.11 In addition, avoid any question the fair answer to which would be, “It depends on what the evidence shows.”
Please remember that individual voir dire is not an opportunity to learn everything about what makes each prospective juror tick. Trial lawyers’ training and instinct in conducting depositions is to learn everything possible, leaving no stone unturned. Voir dire is very different. You will want to pose just a few short, open-ended questions that focus on your key criteria for selecting jurors and that are aimed at getting each prospective juror to provide a narrative answer.
Also, do not expect or demand that prospective jurors answer voir dire questions with lawyerly precision. Normal humans may say “I think so” or “I guess,” but their tone and manner make clear they mean “Yes.” If a potential juror says “I think I can be fair” in a firm and declarative tone, do not insist that they add, “By that I meant I can definitely, without reservation, be completely fair to both sides.” If you try to pin down every prospective juror, the way you might with an adverse witness during a deposition, you will annoy them and may not accomplish much else.
Please be aware that the Superior Court now has official model jury empanelment scripts that judges may use or adapt as they see fit.12
Krupp, J.: I permit panel voir dire, attorney-conducted voir dire at the sidebar, or attorney-conducted voir dire in other formats. I have used supplemental juror questionnaires as another way of assessing juror bias. Having presided over more than two dozen cases in which panel voir dire was used, I have been persuaded that panel voir dire is an incredibly powerful tool to detect juror bias and to assess the suitability of jurors for a particular case. It has been underused in the last five years.
Kazanjian, J.: I permit attorney conducted individual voir dire and panel voir dire. If the parties opt for panel voir dire, I will limit the questions that are asked of each juror during the individual voir dire stage. I will also give you a time limit for the panel portion of panel voir dire. I have used supplemental questionnaires in certain types of cases. Counsel sometimes need to be reminded that the goal of voir dire is to select a fair and impartial jury, not to interrogate each potential jury the way you would depose an adverse party.
Ricciuti, J.: I disfavor panel voir dire. I will ask a set of questions to the entire venire and then ask additional questions to each prospective juror individually. If at any point I believe the juror should be excused for case, I will address that with the parties immediately to maximize efficiency. If I have not excused the juror for cause, I will then let the lawyers follow up on answers to my questions and ask questions on any additional topics that I have approved in advance during the final trial conference. I usually limit such questioning to two minutes or five questions per side, unless there is cause to extend the questioning (such as when the juror fails to give a clear answer). I do not find juror questionnaires helpful, and need to be convinced to use them. I will hear strikes for cause or using peremptory challenges immediately upon the conclusion of the questioning of a prospective juror.
(5) Do you have a process for the sequence in which counsel exercise peremptory challenges?
Salinger, J.: I usually try to alternate between opposing parties. Sometimes I alternate for each prospective juror. Other times, if conducting individual voir dire, I alternate for each jury seat—plaintiffs go first until we fill seat one, defendants go first until we fill seat two, etc.—because that makes it easier for me to keep track of who goes first.
Krupp, J.: With attorney-conducted voir dire at the sidebar, I usually require attorneys to exercise their peremptory challenges after we see each juror. In that context, we alternate the order of exercising peremptory challenges after each juror. With panel voir dire, after the attorney questioning of the first panel, I will require plaintiff to exercise its peremptory challenges until content, and then have defendant exercise its peremptory challenges until content, with no back strikes. The order is reversed with respect to the second panel.
Kazanjian, J.: With individual voir dire, I generally require counsel to exercise preemptory challenges after each juror is found indifferent. I will alternate who goes first. With panel voir dire, each party must exercise peremptory challenges on the seated panel. The remaining jurors are seated and the parties may not back strike.
Ricciuti, J.: I will hear strikes for cause or using peremptory challenges immediately upon the conclusion of the questioning of a prospective juror, and alternate which side goes first.
(6) Do you exclude witnesses or exhibits that are not listed in the pretrial memorandum, either sua sponte or by motion of the party?
Salinger, J.: I will exclude an undisclosed witness or exhibit only if the opposing party can show they are unfairly prejudiced by the surprise. I do not do so sua sponte.
Krupp, J.: When it comes to exhibits, I do not police compliance with the pretrial memorandum. If a lawyer objects to an exhibit, prejudice is the principal concern. Was the exhibit produced in discovery? Was it the subject of questioning during a deposition? Is it being introduced as part of witness’ direct examination (i.e. was using it foreseeable), or during cross-examination or unexpected impeachment of a witness? The answers to these questions are relevant. As for a new witness, I am more likely to question the lawyer sua sponte, particularly if I have carefully reviewed each party’s anticipated witnesses in advance. If you expect to call a witness or introduce an exhibit that was not previously disclosed, it is best to alert opposing counsel and the court as early as possible.
Kazanjian, J.: I will judge the situation based on fundamental fairness.
Ricciuti, J.: I will look at the facts and may, in rare cases, act sua sponte.
(7) Do you strictly limit the scope of expert testimony at trial to matters explicitly disclosed in expert reports, either sua sponte or by motion of the party?
Or do you permit an expert to testify on matters related to but not specifically described in the reports?
Salinger, J.: I will bar an expert witness from testifying about matters not specifically disclosed only if the opposing party can show they are unfairly prejudiced by the surprise. I do not do so sua sponte.
Krupp, J.: I generally limit an expert’s testimony to matters contained in the expert disclosures, but I rely on the opposing party to bring issues to my attention.
Kazanjian, J.: I will bar an expert witness from testifying about matters not specifically disclosed if the opposing party can show they are unfairly prejudiced by the testimony. I do not do so sua sponte.
Ricciuti, J.: Same as Judge Krupp.
(8) What do you prefer that attorneys include or not include in proposed jury instructions?
Salinger, J.: Please be aware that the Superior Court now has a growing body of official model jury instructions, including model versions of the instructions that apply in every case; judges may use or adapt these models as they see fit.13 We welcome lawyers’ feedback on the model instructions. As the introduction to these models on the Superior Court website notes:
These Model Jury Instructions have been drafted by a committee of Superior Court judges. They are designed to be legally accurate and easy for jurors to understand and for judges and practitioners to use. The instructions will be revised regularly to keep current with developments in statutory and case law. They are published here in both PDF and searchable Microsoft Word format, and are accompanied by a Table of Contents organized by topic.
These Model Jury Instructions are intended to be just that—models. Judges have broad discretion and inherent authority to decide how to instruct a jury, whether it is by adapting these models, crafting their own instructions, or starting with some other model.
The Superior Court welcomes input regarding these instructions. Please forward your comments or suggestions to Superior Court Assistant Deputy Court Administrator William Burke at william.burke@jud.state.ma.us.
Counsel should read and think about these models before drafting their own proposed jury instructions.
My aim in every case is to craft jury instructions focused on the particular special questions that we need the jury to answer. So I would like the parties to propose a jury verdict slip as early as possible, ideally before trial. I also welcome proposed jury questions tailored to the case and the questions we will put to the jury. I do not need the parties to give me copies of model instructions that I already have access to. Nor do I need proposed forms of all the general instructions that I deliver in every case; I tend not to look at those at all.
Krupp, J.: A party’s proposed jury instructions should focus on the core legal issues in the case. In the usual case, I do not need general instructions or proposed instructions about how the jury should handle its deliberations. I will usually provide counsel with a draft set of instructions one or two days before charging the jury, followed by a charge conference. It is quite useful if counsel is prepared at or before the charge conference to provide specific suggested changes to the language in my draft instructions.
Kazanjian, J.: I do not need any general instructions from the parties. Please provide the court with your proposed instructions on the substantive claims before the Final Trial Conference. I will also hear your requests for additional instructions as the trial progresses. I will usually follow model instructions (MCLE or Superior Court) unless there is a reason to deviate, or the instructions can be made clearer. I will provide counsel with a draft set of instructions so that we can have a meaningful discussion at the charge conference. I expect counsel to read the draft before the charge conference and to be ready to suggest any alternative language.
Ricciuti, J.: Same as Judge Kazanjian. I’d like to see proposed instructions on any genuinely disputed issues of law as early as possible, preferably at the final pretrial conference.
(9) What process do you use in charging the jury?
Salinger, J.: I provide counsel with a draft of my instructions well before the end of trial, give them a chance to review and think about my draft, and then conduct a jury charge conference in which I ask counsel to tell me what changes they would like me to consider making to my draft.
Then, when I charge the jury, I will provide every juror with a copy of my final written instructions and invite them to read along if that will help them absorb and understand what I am saying.
And I split my charge by delivering my substantive instructions about the special questions before closing arguments, pausing for closing arguments, and then delivering my general instructions about how to evaluate evidence and jury deliberations. I closely follow the Superior Court’s new “Civil Jury Instruction Template,”14 pausing for closing arguments just before the “Role of the Jury” section.
Krupp, J.: I usually charge the jury from the well of the courtroom. I give each juror a copy of my instructions. I allow the jurors to mark up the draft as I go through the instructions and take their copy with them into the jury deliberation room. I ordinarily do not split my charge, but I have done so on the parties’ request.
Kazanjian, J.: I will provide counsel with the final version of the charge so they can follow along while I charge the jury. I provide the jury with a copy of my instructions to use during their deliberations. I will consult with counsel before providing the copy to the jury to see if my oral instructions deviated in any way from the written instructions.
Ricciuti, J.: Same as Judge Salinger, but I generally do not give the jury a copy of the charge when I deliver it to minimize prejudice if an error or ambiguity is identified during the charging process.
(10) Do you allow jurors to take notes during trial?
Salinger, J.: Yes, always.
Krupp, J.: Yes. Usually we pass out notebooks after the opening statements.
Kazanjian, J.: Yes, always.
Ricciuti, J.: Yes.
(11) Do you permit parties to provide jurors with notebooks of exhibits?
Salinger, J.: Yes. The parties should confer, try to reach agreement on the most effective way to present evidence in that particular case, and propose an appropriate process during the final trial conference.
Krupp, J.: Jurors do not want to be left out. They want to see what everyone else is talking about. Juror notebooks of some subset of all of the exhibits is a great way to allow the jurors to follow along. Blowing up exhibits, or projecting exhibits on a screen, is another excellent way of including the jurors. In a long trial, think about using mixed media to keep the jurors engaged.
Once a juror notebook is given to a juror, it belongs to the juror. The juror may highlight or make notes on the documents in the notebook. As a result, the juror notebook may not be “taken back” by the lawyers to add exhibits. Juror notebooks may be supplemented by providing additional pages with appropriate tabs for the jurors to insert into their notebooks.
Kazanjian, J.: Yes.
Ricciuti, J.: Yes – I strongly prefer it when the exhibits are few in number.
(12) Do you allow jurors to submit questions during the presentation of evidence at trial?
Salinger, J.: No. I have done so twice at the request of all parties. The first time the jurors asked just a few questions that were very focused and quite helpful. The second time the jurors proposed long lists of questions, most of which I had to exclude; the process was time consuming, disruptive, and added no value. That experience left me skeptical about letting jurors try to take control of the presentation of evidence away from the lawyers.
Krupp, J.: No.
Kazanjian, J.: No.
Ricciuti, J.: No.
(13) Do you allow the parties to determine the technology they want to use during trials? What happens when counsel cannot agree?
Salinger, J.: Yes. If counsel cannot agree, we should discuss it during the final trial conference, or earlier if need be. I agree with Judge Krupp that display technology used in the courtroom must be available to all parties. And I agree with Judge Kazanjian that counsel should do a practice run with evidence display technology in the courtroom before trial.
Krupp, J.: Yes. Any technology brought into the courtroom by one party must be available to all parties. This may include providing the personnel necessary to operate the technology.
Kazanjian, J.: Yes. I encourage the use of technology. If you cannot agree, please raise that issue at the final trial conference and I will resolve it. I also urge parties to make arrangements with the clerk to practice the technology in the courtroom before trial.
Ricciuti, J.: I agree with all of my colleagues on this.
(14) Do you have any other tips or preferences for lawyers trying BLS cases?
Salinger, J.: I would like to address two other trial-related topics.
Waiving Findings of Fact in Bench Trials. When a case is being tried without a jury, try to convince your client and all other parties to waive the default rule requiring a judge to make detailed findings of fact, and agree instead to submit detailed special questions for the judge to answer. Your clients will avoid the cost of having you prepare proposed findings of fact and rulings of law, and get a much faster decision from the judge. I am happy to have the equivalent of a jury charge conference, and to prepare (with the parties’ input) written instructions to myself, to make clear how I will instruct myself on the governing law. Doing so where the parties waive detailed findings of fact should address any concern that your client will inadvertently lose the opportunity to have a legal error corrected on appeal.
Here are a few tips about trial exhibits.
- Limit the number of exhibits that you offer at trial. Discovery in a BLS case will often unearth a large volume of emails and other documentation. There is no need to introduce all of that into evidence, however. Parties that introduce hundreds of exhibits usually ask the jury or judge to focus and decide the case based on a small subset of them. Which means most of the others probably did not have to be introduced into evidence.
- Summary Documents. Summaries of voluminous financial, accounting, or other records are admissible into evidence.15 A summary exhibit that is a compilation of parts of many other exhibits may also be admissible.16 Such summaries or compilations can be a very effective way to distill this kind of information; trial counsel should use them more often.
- Index. If you expect there will be more than a handful of exhibits, the parties should keep a running index in a form that everyone agrees may be given to the jury or judge at the end of the trial. Each exhibit should be described or unidentified in a completely neutral way that will let the jurors or judge find an exhibit even if they failed to make note of the exhibit number.
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Electronic Exhibits. If any of the exhibits in a jury trial are in electronic form (such as a spreadsheet in native Excel format, or a copy of a television advertisement) and will need to be accessed or played on an appropriate device for the jury to consider them while deliberating, the parties will need to provide a tablet or laptop that the jury may use to do so.
I recently conducted a BLS jury trial in which we ended up with well over 200 exhibits, the official exhibits were in paper form, but all exhibits were presented to the jury electronically during the trial. The parties provided the deliberating jury with a clean laptop, electronic copies of all the exhibits, and a searchable electronic copy of the index. The jurors really appreciated being able to search the index and access the exhibits electronically. Their ability to do so probably shaved days off their deliberations
Krupp, J.: BLS cases are often heavy document cases. Do not lose the jurors in the sea of documents. Think about ways to pare down the documents you need. If you must introduce many documents, work hard to keep the case interesting for the jurors. There are many software products available that allow a document to be projected on a screen, a portion to be highlighted, and then the highlighted portion to be blown up so it can be seen at a distance by the jurors. Making sure the jurors know which part of a document you are addressing is key to keeping the jurors engaged.
Kazanjian, J.: The goal should be to keep the jury’s attention and to simplify the issues. This also applies to the bench trials. It is more effective if you focus your case and the issues for the judge.
Ricciuti, J.: I agree with all of my colleagues.
| Date published: | April 1, 2022 |
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