Juror innovations uncommon in Wisconsin courtrooms

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Jurors in Wisconsin have technically been able to take notes and ask questions during civil trials for years. But the actual use of these jury reforms is often “hit or miss,” said Scott W. Hansen, chair of the Litigation Practice Section at Reinhart Boerner Van Deuren SC.

Hansen said some judges, such as U.S. District Court Judge Charles N. Clevert, have embraced juror participation, but others are less enthusiastic.

“I think some younger judges are willing to explore juror techniques, whereas others prefer to have jurors be a fact finding body at the end after all the evidence is presented,” said Scott C. Minter, program attorney at the University of Wisconsin Law School and reporter to the Wisconsin Civil Jury Instructions Committee.

“Some judges are more innovative,” agreed Hansen.

Clevert was a member of the American Bar Association’s American Jury Project, which developed 19 recommendations for reforming the jury system.

Among those recommendations are several which Clevert uses in his courtroom, including notebooks for jurors and allowing attorneys to summarize evidence at various stages of a trial.

Clevert has also allowed jurors to review videos in the jury room, when they are part of the evidence.

In a recent interview, the judge said that while many of the innovations aren't yet “commonplace,” they are helpful tools to get jurors more actively involved in cases so that they can make a more informed decision.

“Parties are able to present evidence in a way that appeals to the left and right side of a juror's brain,” Clevert said. “In that way, they are better able to connect with jurors.”

Window into jurors’ thinking

Hansen says that jury reforms can be a big plus for trial lawyers.

“The nice thing is it gives a window into what [jurors] are thinking about,” he said. “It’s one of the few times that, outside of voir dire, we get direct feedback from a jury before they come back with a verdict.”

But there can be problems as well.

For example, Hansen said, allowing attorneys to summarize the evidence can come off as mini opening or closing arguments, which can ultimately be more of a distraction for jurors than an asset for the lawyer.

Hansen also said that he didn’t know of any judges who permit pre-deliberation discussions, which give jurors the opportunity to talk about evidence during a trial.

“It’s dangerous [because] trials come in pieces,” he said. “If people start talking about the impact of a particular piece of evidence, they could make up their minds before they have a chance to hear the rest of the case.”

One potential jury reform that is not permitted in Wisconsin is allowing judges to explain to jurors the effect their determination of negligence has on liability and potential awards for each side of a case. Last year, the state legislature rejected a provision that would have authorized this practice as part of a proposed change to joint and several liability standards.

Defense attorneys objected to the change and suggested it would place jurors in a quasi-judicial role. Many also argued that the issue should have been presented as a separate piece of legislation.

“A jury decides facts and judges decide outcomes,” Hansen said. “If jurors knew the outcome, that might change their vote.”