OVER THE PAST two months, several innovative and open-minded attorneys have been willing to experiment with the traditional civil jury trial in Strafford County, and they were pleasantly surprised with the results. Eight lawyers in three cases agreed to permit the jurors to take notes and ask question of the witnesses during trial. Contrary to their worst fears, the jurors' questions were focused, specific to the evidence and remarkably well-thought-out. Though reluctant at first to try this new procedure, each lawyer at the end of trial was convinced of its value.

The process is simple and adds no more than five to 10 minutes to the testimony of each witness questioned, even expert witnesses. The jurors are instructed at the beginning of the case that they are permitted to ask questions. They are provided notepads and pens to take notes and write down questions. The presiding justice specifically instructs the jurors to use their questions to clarify evidence, not to explore personal legal curiosities. At the end of recross-examination of each witness, the bailiff collects the questions and hands them to the court. The lawyers approach the bench and review the questions with the court to ensure the questions are relevant and comply with the rules of evidence. The court then asks the witness the admissible questions and allows the lawyers to follow up. in the Strafford County experience, the jurors often had no questions for incidental witnesses, and the questions the jurors asked of more significant witnesses helped develop the testimony, clarified important facts and, in some cases, established an element of a claim or defense.

In each case, and without exception, a lawyer either forgot to ask a question the juror asked, remarked that he or she should have asked the question the juror asked, or believed the juror had better phrased the question. These results convinced the lawyers that allowing the jurors to ask questions improved the accuracy of the fact-finding process. Indeed, the litigants are best served if the jurors believe they have the information they need to render a fair and just verdict.

I have often heard lawyers, who have not yet experienced the process, raise concerns that juror questions may interfere with a specific trial strategy. Lawyers who have participated, however, know the contrary is true. They have used the process as an opportunity to assess the strengths and weaknesses of their case as the trial progresses and to adjust and fine-tune trial strategy in a more meaningful way. They have experienced a renewed faith in the jurors' ability to understand and grasp the sometimes complex concepts before them. They have concluded that allowing jurors to ask questions is a tool not to fear, but to embrace.

The benefits to the jurors are obvious. Allowing them to become active participants in a trial encourages them to pay even more attention to the testimony. It gives them a personal investment in the outcome and result of the case. it provides them an opportunity to view the judicial process from the inside, not the outside. Jurors are the best advocates of the judicial process and the legal profession. They are members of community groups and churches. They talk about their experiences with their friends, colleagues and legislators At a time when the judicial system is under increasing scrutiny, giving jurors the most complete, fulfilling experience possible benefits not only the litigants before them, but the profession as a whole. I encourage all trial lawyers to take advantage of this opportunity and make trials a more meaningful search for the truth.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer