First jury trial with jurors asking questions.... - Mark P. Loftus

As of July 1, 2012, under Illinois Supreme Court Rule 243, jurors are allowed to ask questions of witnesses at civil trial in Illinois. I just completed a short jury trial about 10 days ago where I had a very inquisitive jury – they asked LOTS of questions. The whole process went fairly smoothly, in part because the trial judge had a very practical and efficient method by which he incorporated the questions. After each witness had completed direct and cross, the jury would be asked, in open court, if there were any questions. If there were questions, the jury was directed back to the jury room and instructed to write out the questions and give them to the sheriff. The sheriff then conveyed them to the judge who would read them into the record and ask for objections. If objections were made[and there were few] they were quickly ruled upon. Of approximately 20 questions, only a couple were tossed – primarily because they were phrased in such a manner that they didn’t make much sense. The trial judge[correctly] didn’t feel he had an obligation to get into a back and forth with a juror about what he or she was trying to ask.

Once the court had read the question and given counsel and opportunity to be heard, he would then reconvene the jury and ask the witness the questions. And the questions were good ones – usually inquiring about small, yet significant facts myself or my opponent had managed to overlook. This jury clearly was engaged and paying close attention to the testimony. And the process provides some early helpful insights. If the jury wants an important [i.e. helpful] fact you have omitted with earlier witnesses – be sure to elicit evidence on the issue with a later witness[assuming appropriate disclosure of course]. Probably wouldn’t hurt to work those facts into your closing as well. If the questions are inquiring about a fact that is not terribly helpful, hope like hell that your opponent is a dullard and doesn’t pick up on it. And if he or she does pick up on it, some quick thinking might be necessary to defuse the impact. As an old boss used to say, it it was easy, anyone could do it.

Lastly, Rule 243 gives lawyers some early insight into which jurors might be leading discussions after closing – and who might be sitting in the foreperson seat when the verdict is read. In my case one particular juror made sure to sit in the front row near the witness box each day[this judge let jurors sit where they pleased]. She would be the first person to raise her hand when the judge asked about questions. Before long, it appeared the other jurors deferred to her about questions. I wasn’t surprised when she took the foreperson seat after a verdict had been reached. Another jury coming up next month – I am hopeful things work as smoothly….