New Rules Change Jury Presentations
By J Steven Collins steve@bcnattorneys.us The Tennessee Rules of Civil Procedure were amended effective July 1, 2003, to change how evidence is presented to a jury in Tennessee courts. Tennessee Rules of Civil Procedure, Rule 43A makes significant changes in the presentation of cases to juries. The new Rule provides that juries “shall” be allowed to take notes and that the Court must provide materials to the jurors for that purpose. The jurors will have access to their notes during all recesses and during jury deliberations. The new Rule also allows a court, if it deems it “helpful”, to provide juries with “notebooks” to use to collect and organize notes, jury instructions and exhibits. If the Court determines to utilize this procedure, it must tell the lawyers in advance and invite them to provide their clients’ exhibits and other materials for inclusion in the notebook.
The Court, in its discretion, also “may” allow members of the jury to ask questions of witnesses. The jurors must write their question and submit it to the Judge. The Judge reviews the question with the litigants’ lawyers and allows time for objection before submitting the juror’s question to the witness.
Finally, the amendment allows the lawyers to make “interim commentary” to the jury. Traditionally, trial lawyers were allowed only an opening statement and a closing argument. Otherwise, during the trial, the lawyers were not allowed to directly address the jury. Once again, this particular Rule is in the discretion of the Judge. The Advisory Commission comments indicate that the “interim commentary” is probably to be limited to allowing short statements by the lawyers to explain what point of law or issue is to be addressed by a particular witness or exhibit.
This new Rule has the potential to make jurors more active in trials. The new Rule is probably also a recognition that demonstrative evidence or visual evidence has more of an impact on the audience than other forms of communication, such as spoken or written language. In preparation for trial, care should be given to assembling the evidence and preparing it in a visually appealing, attention-getting manner. Also trial preparation should now include consideration of possible questions by jurors. Witness preparation now should involve not only preparation for the witness to answer questions of the adversary lawyer but also to prepare the witness to answer a question written by the jury and asked to him or her by the Judge.
Adjunct to this new Rule are on-going measures of our trial courts to obtain or upgrade courtroom technology. The federal courts in East Tennessee have been for some time on the leading edge of such technology. Our federal courthouses are equipped with sophisticated audio-visual, computer driven equipment for display of exhibits to the jury. This year the Knox County Circuit and Chancery Courts obtained new technologies which will change the way cases are tried in those venues. These Courts are now possessed of sophisticated new generation projectors, DVDs and VCRs, which can be integrated into computer displays of evidence and exhibits with PowerPoint, spreadsheet and other software programs.
The changes in the Rules of Civil Procedure and the continuing acquisition of powerful technology by the trial courts should be embraced. These new Rules and developments do present a challenge. No longer is it sufficient to rely on oral testimony at trial. A lawyer or litigant who does so will be at a distinct disadvantage when faced with a case presented with modern technologies and emphasis on the use of leading edge technologies to display demonstrative evidence to persuade the jury to the client’s point of view.