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Tuesday, February 21, 2012

Stoner Law Reform: Trial by DVD

I'm not a fan of the jury system for any reason other than as a check on government power. Even leaving aside the jury's fact-finding competence, it has a baleful influence on trial structure. Jury trial is concentrated trial: all the lawyers, witnesses, and evidence converge on the courtroom for a one-shot high-stakes live battle. Once the trial starts, there's no going back to the reasoned deliberation of motion practice. Judges have to make evidentiary rulings on the fly; lawyers work themselves to exhaustion; jurors put the rest of their lives on hold indefinitely. And the pretrial stage swells to ridiculous proportions (especially discovery), because neither side wants to be caught unprepared for an unpleasant surprise at trial. Jury trial is an adversarial system in which the adversaries both operate under severe handicaps that make it hard for them to present their best arguments.

I asked my inner stoner about the role of the jury. He hates jury duty: he says trials are boring and it's hard to bring weed into the courthouse. I told him that jury duty isn't going away, not until we rewrite Article III and the Fifth, Sixth, and Seventh Amendments and their state equivalents. So he said, If we can't get rid of the jury, can we get rid of the trial? I asked him to explain, and he said he likes watching movies, so put the evidence on a DVD and play that for the jury.

Under the trial-by-DVD system, pretrial motion practice wouldn't just be directed at winnowing down the issues for a trial. It would actually produce the precise set of evidence to be submitted to the jury. All of the evidentiary rulings--every objection as to form and request to strike--would already have been aired and resolved. Then, and only then, would a jury be sworn in. A courtroom deputy would sit with the jury while they watched the DVDs, the judge would give them their instructions, and they'd deliberate as usual. The trial itself would be far more efficient without the sidebars and other frou-frou. Perhaps surprisingly, so would the pretrial. Instead of having to prepare for anything the other side could possibly throw at them, the lawyers would only need to respond to those things the other side actually did throw at them.

And that's just the beginning. Stop thinking of the trial as theater; start thinking of it as a movie. The judge and parties would be able to edit the DVD tightly. If the plaintiff's lawyer realized that a cross-examination hadn't gone anywhere useful, she could just excise it from the testimony she offered. The parties could draw far more freely on documents, depositions, expert reports, demonstrative exhibits, and other sources of evidence to make their cases clearly, rather than needing to filter everything through someone in the witness box droning on endlessly. And the judge could easily issue appropriate rulings as the parties assembled their evidence, granting partial or total directed verdicts that narrowed or eliminated the need for a trial entirely. Think of it as picking up the logistical benefits of inquisitorial trial within a system that remains broadly adversarial.

Some states have experimented with the use of pre-recorded testimony. But, to my knowledge, none have ever used the opportunity of pre-recording to rethink from the start what a "trial" and a "pretrial" actually are. Given that our system treats them jurors as children who are to be seen and not heard, it's not clear what real value there is in having them in the same room as the witnesses at the same time. If we're committed to keeping the jury, why not use their time effectively?

Crazy, or so crazy it might just work?

Posted by James Grimmelmann on February 21, 2012 at 11:29 PM in Civil Procedure | Permalink


"One benefit (the main benefit?) of such an all-consuming, high cost endeavor is to nudge (encourage, bully?) parties into settlement. I'm not sure that trial is presumptively better than settlement in terms of dispute resolution. "

If I'm accused, the settlement requires a guilt admission from me. Bullying me into settlement is highly unfair if I'm not guilty. There should be at least a minimum expectation of fairness and justice. Intentionally making the court so expensive that I have to admit guilt is just wrong.

Making the trial cheaper is much better, that way I can keep at least an illusion of fairness.

Posted by: aaaa | Mar 27, 2012 1:51:14 AM

This reminds me in some ways of hearings at the ITC. Before some of the administrative law judges, all direct examination is submitted in writing (and so, of course, written and heavily edited by the lawyers); only cross examination is live, and under strict time limits. One consequence of this is that lawyers assume they're writing for the post-hearing briefs and for the multi-month process in which the ALJ will prepare findings of fact and conclusions of law, so there is little incentive to streamline the testimony or make it simple to read and understand. I worked on a case once where one side submitted a single witness statement that was more than 1000 pages long — almost certainly counterproductive, but they couldn't resist for some reason.

Posted by: Roger Ford | Feb 25, 2012 7:28:16 PM

I don't think trial by DVD would in itself cut down on discovery. If you were to eliminate depositions and just have one round of videotaped examinations, that would help. But you could eliminate depositions without abandoning live testimony; that's how they do it in England.

Posted by: AF | Feb 23, 2012 2:46:52 PM

Dude. Whatever.

Posted by: Bruce Boyden | Feb 22, 2012 12:25:36 PM

I'm enjoying the stoner law reform series, and am looking forward to more.

My reaction to this proposal is to question whether there's really a problem that needs addressing. You suggest that a "one-shot high-stakes live battle" is undesirable, but I'm not sure if that's right. One benefit (the main benefit?) of such an all-consuming, high cost endeavor is to nudge (encourage, bully?) parties into settlement. I'm not sure that trial is presumptively better than settlement in terms of dispute resolution. Indeed, wouldn't your stoner juror prefer that more cases settle so he's got less of a chance of getting called for jury duty? Making it less painful for parties to try cases just means that more cases are going to be tried rather than settled. I'm not sure whether that's beneficial or not.

Posted by: Litigator turned VAP | Feb 22, 2012 12:21:19 PM

Jim, you are right that present Confrontation Clause doctrine would present a problem in criminal trials where the defendant does not consent. Unfortunately, although the Court has allowed prior cross-examination opportunities to suffice to protect confrontation rights, it demands unavailability as a prerequisite.

We could deal with this by making the textual trial procedure optional for criminal defendants, or by providing them with an opportunity to cross-examine witnesses before the jury once the jury has read the wiki. The amount of time that defendants spend cross-examining witnesses is, after all, only a small portion of total trial time.

Posted by: Mark Spottswood | Feb 22, 2012 10:24:40 AM

Personally, I think going the other way (letting jurors ask questions) is the better way to go. But I haven't been called up for jury duty yet, so maybe that's an idiotic idea.

Jim, arguably even video taped testimony, like that in the original proposal, would violate the Confrontation Clause. As the law stands, pre-recorded testimony and confrontation is allowed only if the witness is unavailable at the trial itself. Where the witness is available, there's a constitutional right to live confrontation in front of the jury. (Of course, the Confrontation Clause can be waived by the defense. So there's still hope for this proposal, but it would have to be based on the agreement of (at least) the defendant, similarly to bench trials.)

Posted by: Andrew MacKie-Mason | Feb 22, 2012 10:11:42 AM

Sorry, that should have been addressed to Mark.

Posted by: Jim von der Heydt | Feb 22, 2012 10:03:07 AM

Ineresting post! But James, wouldn't paper testimony violate the Confrontation Clause in criminal cases?

Posted by: Jim von der Heydt | Feb 22, 2012 10:02:26 AM

An intriguing proposal, Mark. I'm not a fan of the wiki format for presenting information; it works better as a collaboration tool. But whether we give jurors wikis or PDFs or hard copy is an implementation detail. I agree that there's a case against using taped testimony once we no longer have to concentrate the trial in time and space, but I'm not prepared to go to a flat rule against it.

Since we do have live witnesses under our current system, it's frustrating we don't take advantage of the one great benefit of live testimony: interactivity. To put witnesses on the stand and not allow the jurors to ask questions ... that's perverse.

And as for the medieval self-informing jury, stay tuned ...

Posted by: James Grimmelmann | Feb 22, 2012 9:25:45 AM

Here's my question for your inner stoner: If you are going to get rid of the real-time trial, why keep the oral testimony? Showing testimony on videotape has all kinds of well-known problems (just look at the literature on framing effects in videotaped interrogations). Viewing witness demeanor also tends to lower the accuracy of credibility judgments and may introduce problematic sources of bias (see here for more info). And although we are used to having juries learn about cases by watching witnesses testify, that was not always the case (the medieval jury was self-informing) and there is nothing essential about the juries' function that requires them to do so.

So here's my counterproposal: Why not have the parties collaboratively create a wiki summarizing the available evidence, with links to deposition transcripts where the evidence is disputed? We then require our jurors to read the wiki before deliberating. By doing it this way, we not only get the benefits you describe above, we also allow jurors to interact with the case evidence in a format that may encourage them to spend more time systematically comparing stories, rather than choosing sides based on which witnesses they liked more. And studies generally suggest that recall of text is better than recall of orally transmitted information, so this might improve jury comprehension as well.

Lastly, one final thing that might motivate your inner stoner against DVDs: video editing is hard and time consuming, at least if you want to do it well. Wiki writing, by comparison, is quick and easy. I bet if you ask him, your stoner would want to avoid adding too much to the pre-trial workload of lawyers---both because work is annoying in general, and because high pretrial costs tend to cause parties to settle early rather than avail themselves of trials.

Posted by: Mark Spottswood | Feb 22, 2012 8:50:07 AM

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