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Most judges who participated in New Jersey’s recently completed project allowing jurors to ask questions in civil trials are ready to make it permanent. Lawyers, on the other hand, have a different take. The reactions of judges and jurors to the six-month pilot were “almost uniformly positive,” says Appellate Division Judge Barbara Byrd Wecker. She served as chairwoman of the jury issues subcommittee of the Supreme Court’s Civil Practice Committee, which designed the project. Judges say the program involving 11 judges and 120 trials from Jan. 1 to June 30 led jurors to be more attentive. Some lawyers agree, but they also see drawbacks, such as longer trials and undermined strategy. “The jurors were very satisfied with the fact that they could participate and they said so on the questionnaires,” says Gloucester County Superior Court Judge Donald Smith. “It gave them the impression they were participating and made them more alert because they knew they could ask questions.” he adds. David Finkler of Wayne, who tried a personal injury case before Middlesex County Superior Court Judge Yolanda Ciccone, agrees. “Jurors seemed to be paying more attention than they might have in other cases.” Notes Burlington County Superior Court Judge Jan Schlesinger: “The advantages outweigh the disadvantages.” He discounts one such disadvantage — the extra time required for juror questioning — as minimal. In his longest trial under the project, a seven-day medical malpractice case, the 200 juror questions he asked added only two or three hours to the length of the trial, Schlesinger says. In most cases, the difference was even less — 30 to 60 minutes, he adds. Ciccone’s experience was similar. In the average trial lasting four days, she says, the questioning added only about 30 minutes. Some attorneys, on the other hand, thought the questions took up too much extra time. James Egbert, a partner in Pennsauken’s Gallagher, Reilly, Lachat & Egbert, says the questioning added a couple of hours to his four-day trial before Mercer County Superior Court Judge Paulette Sapp-Peterson. Edward Martin, who litigated two juror questioning trials before Ciccone and one before Judge Helen Hoens of Somerset County, opposes the questioning based on his own cost-benefit analysis. “To my recollection, there were only two questions asked by the jurors that had not been covered by any of the attorneys and were insightful,” says Martin, a partner in the Whitehouse firm of Martin & Simmonds. Attorneys had other criticisms, as well. “Sometimes there are tactical reasons why you don’t want to ask a question and you hope your adversary doesn’t ask it either,” says Joseph Paone of the Law Offices of Reid Weinman in New Brunswick. “To have a juror then ask a question you didn’t want answered might undermine your case.” Alan Sklarsky, a partner at Cherry Hill’s Tomar Simonoff Adourian O’Brien Kaplan Jacoby & Graziano, saw a bright side in juries asking questions that attorneys didn’t want to ask. “It’s obviously on their mind and I might get hurt by not trying to resolve it,” he says. No attorney or judge could recall an instance in which juror questioning swung the outcome of a case, though Schlesinger says in one case, jurors’ questions resulted in a settlement. Other attorneys’ reactions were more favorable, however. “Some jurors asked excellent questions,” and for the most part their queries were “good or not harmful,” Egbert says. A benefit acknowledged by several attorneys was the opportunity to gain some insight into where the jury was going. “It is so hard when you’re looking at their faces and you have no clue what the jury is thinking,” says Sklarsky. “This gives you a little indication.” The strongest attorney support for juror questioning was voiced by Hilton Stein, who tried a legal malpractice suit that settled during trial. “It’s going to force lawyers to do away with the legalese they use in the courtroom and let jurors participate in directing the litigation,” says Stein, who heads a firm in Towaco. Juror questions in the program were prescreened and their admissibility was subject to the same rules as questions posed by attorneys, though the judges had received guidelines encouraging them to allow the questions. Most juror questions were allowed, though in some cases, judges rephrased them to clarify or narrow the question. Attorneys were allowed an opportunity to raise objections in a sidebar conference and could ask follow-up questions. There was usually little, if any, dispute about whether to allow a question and few follow-up questions were asked. Though lack of relevance was the most frequent basis for keeping out a question, “it was rare that a question was so off base that it was disregarded,” says Schlesinger. The juror questioning experiment was the result of a recommendation by the Civil Practice Committee in March 1998. Michael Garrahan, jury programs specialist at the Administrative Office of the Courts, is organizing the questionnaires filled out by judges, jurors and attorneys at the conclusion of each trial. He hopes to complete his report by September. Wecker’s subcommittee will then report on the project to the full Civil Practice Committee, chaired by Sylvia Pressler, the presiding judge for the Appellate Division. It will then be up to the Supreme Court to decide whether to follow the lead of Arizona, the only state thus far to allow juror questioning on a permanent basis.

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