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Eastern District of New York Judge John Gleeson is taking a novel approach to managing the upcoming antitrust trial featuring Wal-Mart and other retailers against Visa and MasterCard. Given the complexity facing a jury that has to decide whether the credit card organizations violated the Sherman Act by forcing retailers to accept their debit cards, Gleeson is proposing time limits for both sides, allowing jurors to ask questions and possibly to discuss the case amongst themselves before they have received all the evidence. In In re Visa Check/Mastermoney Antitrust Litigation, 96-CV-5238, Judge Gleeson is also proposing to give the panel an abbreviated section of the jury charge, during the trial, as a prelude to evidence they are about to hear. Along the same lines, the attorneys would be allowed to give mini-opening statements during the course of evidence to tell the jury what is coming and why a particular expert witness is important to the case. Brief summations might also be allowed. While most of Gleeson’s proposals have been used in one form or another in other cases, albeit rarely, some lawyers in the case say they have yet to find an example of a case where so many different complex trial management strategies have been employed together. The judge was due to hear suggestions or objections to his proposals in a meeting with the lawyers Wednesday. He made the proposals last week in an order that accompanied an opinion rejecting the bulk of summary judgment motions made by the credit card organizations. Counsel at Wednesday’s conference were also to have the chance to weigh in with objections to a draft of the jury questionnaires that will be filled out by 450 prospective jurors on April 21. The lawyers will not be present when questionnaires are filled out. Instead, on April 23, they will submit a list of potential jurors who should be excused for cause or on hardship grounds, with challenges to be heard the following day. The judge, but not the lawyers, will conduct individual voir dire on April 28. Judge Gleeson’s proposed time limits would give the retailers, who are seeking billions of dollars in damages as a result of the alleged conspiracy, 150 hours to put on their case. Visa and Mastercard would then have 170 hours to divide between themselves for the defense. His proposal calls for the parties to “retain a timekeeper acceptable to both sides.” The judge’s abbreviated instruction on the law, or “precharge,” as he called it, will provide a “brief primer orienting the jurors to the central issues in the trial, in the hope that they will better understand the relevance and significance of evidence as they hear it, rather than in retrospect upon hearing the formal charge.” CONTROVERSIAL PRACTICE Permitting jurors to ask questions is the most controversial of the judge’s proposals. In 1995, the 2nd U.S. Circuit Court of Appeals upheld the practice in another Eastern District case, U.S. v. Bush, 47 F.3d 511, where Judge Edward R. Korman allowed jurors to ask questions of a bank robbery defendant who had elected to take the witness stand. “We strongly discourage its use,” 2nd Circuit Judge Joseph M. McLaughlin said of allowing juror questions, adding, “The most troubling concern is that the practice risks turning jurors into advocates, compromising their neutrality.” Nonetheless, McLaughlin said Bush was unable to show he was prejudiced by the “limited and controlled juror questioning,” allowed by Judge Korman. The circuit also used the Bush case to reaffirm support for procedures to minimize problems raised by the juror questioning: Jurors submit questions to the judge in writing, the judge reviews the questions with the lawyers outside of the jury’s presence, and the judge puts the questions to the witness. The circuit in Bush cautioned that juror questioning should be allowed only in “extraordinary or compelling circumstances,” and Gleeson noted in his opinion that the practice is discouraged. Nonetheless, the judge said the Visa/MasterCard case “may warrant an exception.” Visa and MasterCard are accused of requiring merchants to use their debit cards as a continuing condition of using their credit card services. Gleeson’s opinion outlined how the jury will be asked to decide whether the credit cards’ policies violated the Sherman Act under a “rule of reason analysis,” which requires the plaintiffs prove an adverse affect on competition that is not outweighed by the pro-competitive effects of the defendants’ practices. “The judge has taken steps to alleviate the jury’s burden by deciding some issues ahead of time, setting time limits and making proposals to interact with the jury to keep them fully informed and alleviate any confusion,” said Lloyd Constantine of New York’s Constantine & Partners, counsel for the retailers. “[Today], he’s giving the lawyers a chance to air it out.”

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