The complexity of complexity: An empirical study of juror competence in civil cases

University of Cincinnati Law Review

Volumn 78, Issue 3, 2010, Pages 929-968

  Reiber, Matthew A ^a   Weinberg, Jill D ^b  

^a Florida Coastal School of Law   (United States)

^b NORTHWESTERN UNIVERSITY   (United States)

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EID: 77954968078     PISSN: 00096881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (209)

1. See Daniel P. Sullivan, Must the Jury Reach a Verdict? The Constitutionality of Eliminating Juries in Patent Trials by Creating an Article I Tribunal, 7 J. MARSHALL REV. INTELL. PROP. L. 754 (2008) (arguing that juror bias against patentees in infringement actions, and juror difficulty understanding complex scientific and legal issues, justifies congressional withdrawal of jurisdiction over certain patent issues from Article III courts and reassigning that jurisdiction to a specialized Article I tribunal comprised of individuals with patent experience);
2. Beth Z. Shaw, Judging Juries: Evaluating Renewed Proposals for Specialized Juries from a Public Choice Perspective, 2006 UCLA J. L. & TECH. 3 (2006) (advocating use of specialized juries in complex cases to increase comprehension and reduce the potential for cascading effects during deliberation);
3. Jennifer F. Miller, Should Juries Hear Complex Patent Cases?, 2004 DUKE L. & TECH. REV. 4 (2004) (advocating reallocation of responsibility for resolving factual disputes in patent cases between judge and jury);
4. William W. Schwarzer, Reforming Jury Trials, 132 F.R.D. 575 (1991) (advocating specialized commercial courts without juries to expedite the commercial litigation process). Other commentators are more optimistic, however.
5. See, e.g., Richard C. Waites & David A. Giles, Are Jurors Equipped to Decide the Outcome of Complex Cases?, 29 AM. J. TRIAL ADVOC. 19 (2005) (reviewing decisionmaking generally and advocating increased use of existing devices to improve juror understanding);
6. Joel C. Johnson, Lay Jurors in Patent Litigation: Reviving the Active, Inquisitorial Model for Juror Participation, 5 MINN. INTELL. PROP. REV. 339 (2004) (advocating juror note-taking, questioning witnesses, and interim discussions in patent cases);
7. Steven L. Friedland, The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. REV. 190 (1990) (same).
8. Complexity can be viewed through the prism of procedural or factual complexity. Procedural complexity exists when an action involves multiple claims between a single plaintiff and a single defendant or multiple claims between multiple plaintiffs, multiple defendants, counterclaimants, crossclaimants, or third-party plaintiffs and third-party defendants. The potential for procedural complexity is inherent in the federal system because "the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). To accommodate broad joinder, the standard for adding claims and parties is quite low. See 6A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1583 at 528 (2d ed. 1986) ("[O]nce parties are properly joined, any party asserting a claim (whether it be an original claim, counterclaim, crossclaim, or third-party claim) may join as many claims as the party has against an opposing party or parties, even though they arise out of different transactions and do not involve questions of law or fact that are common to all the parties."); see also FED. R. CIV. P. 18(a) ("A party asserting a... crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party."). The potential for procedural complexity is compounded because legal and equitable claims can be joined in a single action - meaning that jurors will sometimes hear evidence directed solely to equitable claims that will not have any relevance to the legal claims they must resolve. See id. Factual complexity exists when an action involves esoteric evidentiary facts beyond the experience of most lay jurors or when it requires resolution of ultimate facts from an extensive evidentiary record. The potential for factual complexity increases each year as the number of cases involving sophisticated technology, business transactions, and medical issues increases. In fact, litigants initiated 29,277 product liability actions, 34,432 contract actions, 3,346 copyright actions, 3,017 patent actions, 1,638 securities actions, and 1,063 antitrust actions during the twelve-month period ending March 31, 2008. ADMIN. OFFICE OF THE U.S. COURTS, TABLE C-2, U.S. DISTRICT COURTS - CIVIL CASES COMMENCED, BY BASIS OF JURISDICTION AND NATURE OF SUIT, DURING THE 12-MONTH PERIOD ENDING MARCH 31, 2007 AND 2008 (2008), available at http://www.uscourts.gov/uscourts/Statistics/ FederalJudicialCaseloadStatistics/2008/tables/C02Mar08.pdf.
9. A complexity exception has been supported on the ground that a party possesses a due process right to a rational decision-a right that would be violated when the trier of fact lacks the capacity to understand the evidence or the facts and therefore cannot rationally deliberate the verdict. See In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1084 (3d Cir. 1980) ("We conclude that due process precludes trial by jury when a jury is unable to perform this task [of rational decisionmaking] with a reasonable understanding of the evidence and the legal rules.");
10. Note, The Right to a Jury Trial in Complex Civil Litigation, 92 HARV. L. REV. 898, 910 (1979) (arbitrary decision resulting from the jury's inability to comprehend the facts or evidence "may offend the right to due process afforded by the fifth amendment."). Such an exception has also been supported on the ground that cases beyond the capacity of jurors fall within traditional equity jurisdiction because of the absence of an adequate remedy at law-specifically, a rational decision from an informed jury.
11. See In re Jensen, 946 F.2d 369, 372 (5th Cir. 1991) (acknowledging that adequate remedy at law may not exist in context of case in which transactions are so complicated as to justify resolution by judge rather than jury);
12. Towers v. Titus, 5 B.R. 786, 796 (N.D. Cal. 1979) ("If, after examining each issue in this case, the Court finds that it would be virtually impossible for a jury to understand and render a rationally based decision, then plaintiffs remedy 'at law' is inadequate, and he is entitled to a trial before the Court." (footnote omitted));
13. Rosen v. Dick, 83 F.R.D. 540, 543-44 (S.D.N.Y. 1979) (complexity of case increased likelihood of irrational verdict thus making remedy at law inadequate and justifying bench trial);
14. Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59, 66 (S.D.N.Y. 1978) ("The adequacy of the legal remedy necessarily involves the adequacy of the jury and its competency to find the facts.");
15. In re U.S. Fin. Sec. Litig., 75 F.R.D. 702, 710 (S.D. Cal. 1977) ("The basis for granting equity jurisdiction over cases of extraordinary complexity is, of course, the inadequacy of the legal remedy, or more specifically, the inability of the jury to handle the case and render a fair decision, as the Court noted in Dairy Queen."), rev'd, 609 F.2d 411 (9th Cir. 1979);
16. Ochoa v. Am. Oil Co., 338 F. Supp. 914, 921 (S.D. Tex. 1972) ("In an extraordinary case, the complexity of issues may be so great that only a court of equity may unravel them, thus implying an inadequate remedy at law.").
17. See Shaw, supra note 1; Michael A. Fisher, Going for the Blue Ribbon: The Legality of Expert Juries in Patent Litigation, 2 COLUM. SCI. & TECH. L. REV. 1 (2001);
18. Kristy Lee Bertelsen, From Specialized Courts to Specialized Juries: Calling for Professional Juries in Complex Civil Litigation, 3 SUFFOLK J. TRIAL & APP. ADVOC. 1 (1998);
19. David B. Pieper, The Appropriate Judicial Actor for Patent Interpretation: A Commentary on the Supreme Court's Decision in Markman v. Westview Instruments, Inc., 51 ARK. L. REV. 159 (1998);
20. Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49 (1997);
21. Gregory D. Leibold, In Juries We Do Not Trust: Appellate Review of Patent-Infringement Litigation, 67 U. COLO. L. REV. 623 (1996);
22. Rita Sutton, A More Rational Approach to Complex Civil Litigation in the Federal Courts: The Special Jury, 1990 U. CHI. LEGAL F. 575 (1990);
23. Note, The Case for Special Juries in Complex Civil Litigation, 89 YALE L.J. 1155(1980).
24. See Sullivan, supra note 1; Gregory J. Wallace, Toward Certainty and Uniformity in Patent Infringement Cases after Festo and Markman: A Proposal for a Specialized Patent Trial Court with a Rule of Greater Deference, 77 S. CAL. L. REV. 1383 (2004);
25. LeRoy L. Kondo, Untangling the Tangled Web: Federal Court Reform Through Specialization for Internet Law and Other High Technology Cases, 2002 UCLA J. L. & TECH. 1; Leibold, supra note 4;
26. William V. Luneburg & Mark A. Nordenberg, Specially Qualified Juries and Expert Nonjury Tribunals: Alternatives for Coping with the Complexities of Modern Civil Litigation, 67 VA. L. REV. 887 (1981).
27. The absence of empirical studies regarding juror competence is surprising given the number of empirical studies regarding juror comprehension of pattern instructions and the dynamics of group decision-making. See, e.g., Lynne ForsterLee & Irwin A. Horowitz, The Effects of Jury-Aid Innovations on Juror Performance in Complex Civil Trials, 86 JUDICATURE 184 (2003);
28. Peter M. Tiersma, Jury Instructions in the New Millennium, 36 CT. REV. 28 (1999);
29. Bradley Saxton, How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming, 33 LAND & WATER L. REV. 59 (1998);
30. Alan Reifman et al., Real Jurors' Understanding of the Law in Real Cases, 16 LAW & HUM. BEHAV. 539 (1992);
31. Larry Heuer & Steven D. Penrod, Instructing Jurors: A Field Experiment With Written and Preliminary Instructions, 13 LAW & HUM. BEHAV. 409 (1989);
32. Walter W. Steele, Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N. C. L. REV. 77 (1988);
33. Amiram Elwork et al., Towards Understandable Jury Instructions, 65 JUDICATURE 432 (1982).
34. The study involved written questionnaires to individuals who qualified for jury service in federal court. The participants thus satisfied the requirements imposed by 28 U.S.C. § 1865(b) (2006) which presumptively qualifies an individual for service on a petit jury unless she (1) is not a citizen of the United States, eighteen years of age or a resident of the judicial district for at least one year; (2) is unable to read, write, and understand English with sufficient proficiency to fill out the juror qualification form; (3) is unable to speak English; (4) is incapable, by reason of mental or physical infirmity, to render satisfactory jury service; or (5) has a felony charge pending against her or has been convicted of a felony and her civil rights have not been restored. For a general overview of jury selection in the federal system, see Report of the Committee on the Operation of the Jury System of the Judicial Conference of the United States, 42 F.R.D. 353 (1967). The United States District Court for the Western District of Washington recruits jurors from lists of individuals with a state-issued driver's license or identification card. See U.S. Dist. Ct, W. Dist. of Wash., Juror Qualification Questionnaire, http://www.wawd.uscourts.gOv/JuryService/ QualificationQuestionaire.htrri#SourcelistFAQ.
35. These include instructing the jury prior to commencement of trial; allowing jurors to take notes during trial which can be used during deliberations; permitting interim summation by counsel and discussion by jurors regarding the facts and evidence; allowing jurors to formulate questions for witnesses; providing concluding instructions prior to closing argument; and using special verdict forms.
36. U.S. CONST. amend. VII, cl. 1. The right to trial by jury is not self-executing and a litigant must formally demand one within ten days of service of the last pleading directed to the issue for which a jury is requested, or the right will be forfeited. See FED. R. CIV. P. 38(b) ("On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand - which may be included in a pleading - no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand [with the court]."); FED. R. CIV. P. 38(d) ("A party waives a jury trial unless its demand is properly served and filed."). Absent a proper and timely demand, issues of fact are resolved by the bench. See FED. R. CIV. P. 39(b) ("Issues on which a jury trial is not properly demanded are to be tried by the court."). The trial judge nevertheless retains discretion to grant a motion for trial by jury following a failure to make an appropriate demand. See id. ("But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded."). Such motions are rarely granted, however. See 9 WRIGHT ET AL., supra note 2, § 2321 at 270 ("Another ameliorating source is the fact that the court has discretion under the second sentence of Rule 39(b) to relieve a party from a waiver by ordering a jury trial even though there was no timely written demand, but district judges have been extremely reluctant to exercise this discretion.").
37. The historical record regarding the right to trial by jury in civil cases is scant, causing one historian to remark that "[w]e have almost no direct evidence concerning the intention of the framers of the seventh amendment." Edith Guild Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 291 (1966);
38. see also Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639, 660 n.60 (1973) ("[l]t is almost certain that altogether not more than an hour or so was spent on the subject of jury trial."). The available record reflects that the framers briefly considered, but ultimately rejected, adding language to Article III that "a trial by jury shall be preserved as usual in civil cases." Henderson, supra, at 293-94. The suggested language failed because: the cases open to a jury, differed in different states; it was therefore impracticable, on that ground, to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless: and it could not, with any propriety, be said, that 'the trial by jury shall be as heretofore:' since there has never been any foederal [sic] system of jurisprudence, to which the declaration could relate. Henderson, supra, at 296
39. (quoting P. LEICESTER FORD, PAMPHLETS ON THE CONSTITUTION, reprinted in 3 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 101 (Max Farrand ed. 1937)). The Seventh Amendment received little attention during drafting and ratification of the Bill of Rights, causing one commentator to note that "[t]he skeletal nature of the record that has been uncovered hardly affords reassurance in its interpretation." Wolfram, supra, at 730.
40. For an excellent overview of the events leading to ratification of the Seventh Amendment, see Stanton D. Krauss, The Original Understanding of the Seventh Amendment Right to Jury Trial, 33 U. RICH. L. REV. 407 (1999).
41. See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935) ("The right of trial by jury thus preserved is the right which existed under the English common law when the amendment was adopted.");
42. Dimick v. Schiedt, 293 U.S. 474, 476 (1935) ("In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791.");
43. see also Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996) ("Since Justice Story's day we have understood that '[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted.'" (quoting Baltimore & Carolina Line, 295 U.S. at, 656)).
44. See Markman, 517 U.S. at 376 ("In keeping with our longstanding adherence to this 'historical test,' we ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was-" (citations omitted)). This historical test applies to subsequently created statutory causes of action as well. See, e.g., Tull v. United States, 481 U.S. 412, 417 (1987) ("First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity.").
45. The jurisdictional division between the common law courts and the equity courts can be viewed through the prism of causes of action and remedies. The common law courts possessed jurisdiction over enumerated forms of action (numbering approximately 1,400 by the end of the seventeenth century), meaning that wrongful conduct that could not be pigeon-holed into one of these forms of action could not be pursued in these courts. They awarded money damages only, meaning that other forms of relief, such as an injunction or specific performance, were unavailable. And they typically permitted only simple litigation involving a single plaintiff, a single defendant and a single claim, meaning that multiple individual actions would be necessary in situations in which a plaintiff possessed multiple claims against a defendant. The equity courts possessed concurrent jurisdiction over the forms of action recognized in the common law courts but exercised that jurisdiction when money damages would be inadequate or incomplete. See 1 JOHN N. POMEROY, A TREATISE ON EQUITY JURISPRUDENCE AS ADMINISTERED IN THE UNITED STATES OF AMERICA § 173, at 157 (1881); id. § 180 at 166 ("The doctrine, in its most general and comprehensive form, admits the existence of the concurrent jurisdiction over all cases in which the remedy at law is not certain, complete, and sufficient"). The relief available in the common law courts would be "inadequate," for example, when wrongful conduct would continue after conclusion of the suit unless enjoined-as might be the case in the context of trespass to land. The relief available in the common law courts would be deemed "inadequate," similarly, when the limitations on claim and party joinder in those courts necessitated multiple lawsuits between the same parties rather than a single proceeding in which all disputes could be resolved. Id. at 157-58 ("The incompleteness or insufficiency of the legal remedy, upon which the concurrent equitable jurisdiction rests must therefore necessarily exist in the modes of legal procedure-").
46. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 984 (Fed. Cir. 1995) ("[I]f an action could be tried to a jury in 1791, the right to a jury trial is preserved."), aff'd, 517 U.S. 370 (1996);
47. In re Clay, 35 F.3d 190, 194 (5th Cir. 1994) ("[I]n a suit that would have been tried at common law in England in 1789, a litigant has both a Seventh Amendment right to a jury-").
48. The historical test is frequently criticized. See Krauss, supra note 10, at 479-80 (concluding that the available historical record demonstrates that the reference to "common law" cannot be construed as referring to the common law of England; instead, "the Seventh Amendment left the determination of which civil cases would be regarded as 'Suits at common law'-i.e., the extent of the right to jury trial in civil cases in the federal courts-entirely to the discretion of the Congress."); Kenneth S. Klein, The Myth of How to Interpret the Seventh Amendment Right to a Civil Jury Trial, 53 OHIO ST. L.J. 1005 (1992) ("suits at common law" should be construed to mean judge-created causes of action to conform the scope of the right to the framers concerns about ensuring a check against the powers of unelected judges). The historical test does have an influential proponent, however.
49. See Martin H. Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Mating, 70 Nw. U. L. REV. 486, 490 (1975) ("[T]he seventh amendment should be given a rigid historical interpretation, since the language of the amendment is rationally capable of such interpretation....").
50. See Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 565 (1990) ("The second inquiry is the more important in our analysis.");
51. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989) ("The second stage of this analysis is more important than the first.");
52. Tull, 481 U.S. at 421 ("[T]he relief sought is '[m]ore important' than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial.")
53. (quoting Curtis v. Loether, 415 U.S. 187, 196 (1974)). The right to trial by jury is not limited to causes of action that conform precisely to the old forms of action but includes any newly developed cause of action that is analogous to one of the older forms. See Markman, 517 U.S. at 376 ("[W]e ask first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was.");
54. Terry, 494 U.S. at 564 ("The right to a jury trial includes more than the common-law forms of action recognized in 1791.");
55. Tull, 481 U.S. at 417 ("The Court has construed this language to require a jury trial on the merits in those actions that are analogous to "Suits at common law."). This departure from the exact practice of the English courts is particularly significant with respect to statutory causes of action created after the ratification of the Bill of Rights. See Terry, 494 U.S. at 564-65 ("The right extends to causes of action created by Congress.");
56. Granfinanciera, 492 U.S. at 42 ("[T]he Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action-");
57. Tull, 481 U.S. at 417 ("This analysis applies not only to common-law forms of action, but also to causes of action created by congressional enactment.").
58. The reference to a "federal court" in this example is intentional because the Seventh Amendment applies exclusively to federal court actions; unlike other portions of the Bill of Rights, the Seventh Amendment's "guarantee of the right to a civil trial by jury does not apply to the states and was not incorporated into the Fourteenth Amendment." R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3d 906, 924 (9th Cir. 2005).
59. See Burlington N. R.R. Co. v. Neb. Pub. Power Dist., 931 F. Supp. 1470, 1481-82 (D. Neb. 1996) (describing the application of the historical test to a hypothetical breach of contract action). In contrast, the same plaintiff initiating the same action, but seeking specific performance, would not be entitled to have issues of fact resolved by a jury because, while the common law courts recognized her cause of action, they did not award such relief. Instead, she would be required to proceed in the equity courts where a chancellor would make factual determinations and, as such, would have her case resolved by the bench today. See id.
60. For example, the federal government pursued antitrust claims against IBM for thirteen years before voluntarily dismissing the action on the ground that it was without merit. See In re Int'l Bus. Machs. Corp., 687 F.2d 591 (2d Cir. 1982). The government's action spawned a number of private actions of similar magnitude.
61. See, e.g., Memorex Corp. v. Int'l Bus. Machs. Corp., 636 F.2d 1188 (9th Cir. 1980) (entry of directed verdict after eighty-day jury trial);
62. Cal. Comp. Prods., Inc. v. Int'l Bus. Machs. Corp., 613 F.2d 727 (9th Cir. 1979) (entry of directed verdict after three years of pretrial discovery and fifty-four day jury trial).
63. These "hints" began with the venerable cases of Beacon Theatres v. Westover, Inc., 359 U.S. 500 (1959) and Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), which suggested that the right to trial by jury might be displaced in at least some circumstance, and reached their crescendo in Ross v. Bernhard, 396 U.S. 531 (1970), in which the Supreme Court expressly stated that the right to trial by jury might ebb and flow with "the practical abilities and limitations of juries." Id. at 538 n.10.
64. One commentator determined that the equity courts enjoined actions within the jurisdiction of the common law courts whenever the practical abilities of jurors were "not up to the complexities of the case" and concluded that a district court judge who strikes a jury demand on the same basis "will have history on [his] side." Patrick Devlin, Jury Trial of Complex Cases: English Practice at the Time of the Seventh Amendment, 80 COLUM. L. REV. 43, 107 (1980). Another debated the point.
65. See Morris S. Arnold, A Historical Inquiry Into the Right to Trial by Jury in Complex Civil Litigation, 128 U. PA. L. REV. 829, 830 (1980) (the contention that equity courts enjoined complex cases "is misconceived in a number of important and fatal ways: not only is it a view at odds with the current of American legal thought in the late eighteenth century, it is also without general support in the English authorities of that age."). Significantly, these articles were commissioned by litigants involved in complex cases, with the author's conclusion conforming to the client's preferred litigation position. IBM retained Lord Devlin to analyze the right to jury trials in complex cases toward the end of its antitrust battle with the government; Zenith Radio retained Professor Arnold to analyze the issue during its antitrust battle with Japanese electronics manufacturers. See Arnold, supra, at n.al (editor's note).
66. Ross, 396 U.S. at 538 n.10.
67. See, e.g.. Note, The Right to a Jury Trial in Complex Civil Litigation, 92 HARV. L. REV. 898, 910-11 (1979) (arbitrary decision resulting from the jury's inability to comprehend the facts or evidence "may offend the right to due process afforded by the fifth amendment").
68. See Phillips v. Kaplus, 764 F.2d 807, 814 (11th Cir. 1985) ("As to the third factor recognized in Ross... we acknowledge the timidity with which the courts have addressed this issue.... In any event, to the extent that Ross suggests such a factor is relevant, we observe that the claims and remedies involved in the instant action are certainly quite complicated, and in this regard our decision is consistent with that aspect of the Ross decision." (footnote omitted));
69. In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1079 (3d Cir. 1980) ("The third prong of the test plainly recognizes the significance, for purposes of the seventh amendment, of the possibility that a suit may be too complex for a jury. Its inclusion in the three prong test strongly suggests that jury trial might not be guaranteed in extraordinarily complex cases-"); Hammer v. Jones Transfer Co., No. C 84-7908, 1985 WL 17881, at *5 (N.D. Ohio Sept. 11, 1985) ("There is no question that labor law litigation involves the interaction of complex federal statutory schemes which would be extremely difficult for juries to interpret-Thus under the analysis of Ross and Mitchell, the Court concludes that the Seventh Amendment does not provide a jury trial right for a hybrid § 301/fair representation claim.");
70. Donovan v. Robbins, 579 F. Supp. 817, 822 (N.D. Ill. 1984) ("The 'practical abilities and limitations of juries' prong... may suggest a 'complexity' exception to the Seventh Amendment-[I]t has become apparent in the course of pre-trial proceedings that the issues before us, including the allocation of liability among the defendants and the analysis of Amalgamated's financial status are complex and, possibly, beyond the ability of the average juror to grasp.");
71. A.G. Becker-Kipnis & Co. v. Letterman Commodities, Inc., 553 F. Supp. 118, 124 (N.D. Ill. 1982) ("Even if we were to conclude that Becker-Kipnis' claim for costs and attorneys' fees is 'legal'..., the practical difficulties inherent in presenting that claim to the jury suggest that this case could be deemed an instance 'where there is obviously... functional justification for denying the jury trial right.'") (quoting Curtis v. Loether, 415 U.S. 189, 195 (1974)));
72. Towers v. Titus, 5 B.R. 786, 796 (N.D. Cal. 1979) ("The final element of the Ross test requires this Court to determine ... to what extent the complexity of this case will prevent a jury from fairly deciding it. If, after examining each issue in this case, the Court finds that it would be virtually impossible for a jury to understand and render a rationally based decision, then plaintiffs remedy 'at law' is inadequate, and he is entitled to a trial before the Court." (footnote omitted));
73. Rosen v. Dick, 83 F.R.D. 540, 544 (S.D.N.Y. 1979) ("The instant case is going to involve complex issues of accounting practice beyond the normal comprehension of the jury that will try the case.");
74. ILC Peripherals Leasing Corp. v. Int'l Bus. Machs. Corp., 458 F. Supp. 423, 448 (N.D. Cal. 1978) ("[T]he court hereby finds that the magnitude and complexity of the present lawsuit render it, as a whole, beyond the ability and competency of any jury to understand and decide rationally, and orders, in the event of a remand for retrial, that Memorex's jury demand be stricken.");
75. Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59, 70 (S.D.N.Y. 1978) ("I find, that trial of this case is beyond the 'practical abilities and limitations of juries.' Assuming a minimum length for a jury trial in this case of four (4) months, an estimate which I now consider low, it would be impossible to empanel a representative jury in this case, whose verdict would enjoy the appearance of fairness.");
76. Sec. & Exch. Comm'n v. Associated Minerals, Inc., 75 F.R.D. 724, 726 (E.D. Mich. 1977) ("[T]o the extent that a jury's ability to properly decide an action may be relevant to determining whether the constitutional right to a jury is involved, the Court believes that the issues of fraud and noncompliance with the registration provisions of the securities laws presented in this action are indeed complex and for this reason are not especially suited for resolution by a jury.");
77. In re U.S. Fin. Sec. Litig., 75 F.R.D. 702, 711 (S.D. Cal. 1977) ("The factual issues, the complexity of the evidence that will be required to explore those issues, and the time required to do so leads to the conclusion that a jury would not be a rational and capable fact finder."), rev'd, 609 F.2d 411 (9th Cir. 1979);
78. In re Boise Cascade Sec. Litig., 420 F. Supp. 99, 104 (W.D. Wash. 1976) ("[T]he point at which a jury's limitations exceed its abilities is not precise nor is it easy of definition. No single factor alone can dictate that a jury should not hear a case. As in this case, a number of factors must combine to convince the Court that a jury would be incapable of fairly deciding the case.").
79. See Towers, 5 B.R. at 797 (two to four months);
80. Rosen, 83 F.R.D. at 543 (four months, although seven months required for trial of similar companion case);
81. ILC Peripherals, 458 F. Supp. at 444 (five months of trial before court declared mistrial);
82. Bernstein, 79 F.R.D. at 70 (four months with respect to named plaintiffs alone, an estimate the court believed was "low");
83. In re U.S. Fin. Sec. Litig., 75 F.R.D. at 713 (two years);
84. In re Boise Cascade Sec. Litig., 420 F. Supp. at 104 (four to six months).
85. See In re U.S. Fin. Sec. Litig., 75 F.R.D. at 707 ("It will have to listen to, understand, and remember-throughout the trial-months upon months of highly technical and often boring testimony ..
86. See Towers, 5 B.R. at 797 (parties identified sixty-six witnesses and "thousands of exhibits");
87. ILC Peripherals, 458 F. Supp. at 444 (during first trial parties called eighty-seven witnesses, whose testimony filled 19,00 pages of transcripts, and offered more than 2,300 documentary exhibits);
88. Bernstein, 79 F.R.D. at 63 (plaintiffs premarked 550 trial exhibits; defendants premarked 650 exhibits; plaintiffs intended to call fifteen witnesses, but the number could rise fivefold if plaintiffs were required to prove the amount they would have received for performance fees in absence of alleged conspiracy; defendants intended to call 100 witnesses; plaintiffs intended to offer 2,500 pages of accountants' worksheets regarding damages.);
89. In re U.S. Financial Sec. Litig., 75 F.R.D. at 707 (24,000 anticipated exhibits of more than 100,000 pages; plaintiffs' witness list identified 240 potential lay and expert witnesses).
90. See Bernstein, 79 F.R.D. at 62 (procedurally complicated class action because each class member, numbering as many as 1,100, will be required separately to prove injury and damage arising out of 1,000 individual contracts between a plaintiff and a defendant; in addition, several defendants asserted counterclaims and interposed defense of set-off for amounts owed them from other relationships); In re U.S. Fin. Sec. Litig., 75 F.R.D. 702 (procedurally complicated case because of numerous nonoverlapping claims between numerous plaintiffs and one hundred or more defendants arising under laws of different states in some instances, with many defendants asserting cross claims against one another).
91. See In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d at 1086 ("A long trial can interrupt the career and personal life of a jury member and thereby strain his commitment to the jury's task."); Rosen, 83 F.R.D. at 543-44 ("[E]mployed citizens or persons engaged in business for their own account and having familiarity with business concepts would seek to be
92. See Hammer, 1985 WL 17881, at *5 ("[L]abor law litigation involves the interaction of complex federal statutory schemes which would be extremely difficult for juries to interpret."); Donovan v. Robbins, 579 F. Supp. 817, 822 (N.D. Ill. 1984) (action under ERISA in which allocation of liability among defendants and analysis of party's financial status is too complex for average juror); Towers, 5 B.R. at 796 (action to recover fraudulent conveyance; trier of fact will be required to unravel hundreds of complex real estate transactions through which ownership was transferred); Rosen, 83 F.R.D. at 543 (accounting issues involved in case are beyond the capacity of lay jurors); ILC Peripherals, 458 F. Supp. at 444 (antitrust action for alleged monopolization of market for electronic data processing devices); Sec. & Exch. Comm'n v. Associated Minerals, Inc., 75 F.R.D. 724, 726 (E.D. Mich. 1977) (enforcement proceeding involving alleged sales of unregistered securities); In re U.S. Fin. Sec. Litig., 75 F.R.D. at 707, 712 (securities fraud class action involving intricate accounting issues about the valuation of assets and the propriety of transaction between parent and subsidiaries and between subsidiaries); In re Boise Cascade Sec. Litig., 420 F. Supp. at 104 (securities fraud action involving issues regarding the propriety of certain accounting techniques for valuing assets and liabilities; the interest paid to acquire land holdings and the return on investment from lease and sale of those holdings; and the extent to which individual plaintiffs were damaged).
93. Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1015 (7th Cir. 1991) ("[I]ssues... in a copyright infringement action do not appear to be 'beyond the practical abilities and limitations of juries'-");
94. City of N.Y. v. Pullman, Inc., 662 F.2d 910, 919 (2d Cir. 1981) ("[T]his case was not too complex for a jury to decide.");
95. Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138, 143 (5th Cir. 1979) ("[W]e find that Cox's claim meets all three Ross tests-");
96. Jefferson Nat'l Bank v. Central Bank, 700 F.2d 1143, 1150 (7th Cir. 1983) ("Consideration of the practical limitations of a jury trial... does not preclude a jury trial in this case.");
97. Barber v. Kimbrell's, Inc., 577 F.2d 216, 225 n.25 (4th Cir. 1978) ("[N]either the issues involved in Curtis nor those in the instant case are so complex that they could not effectively and efficiently be decided by a jury.");
98. Minnis v. UAW, 531 F.2d 850, 852 (8th Cir. 1975) ("We perceive no reason why a jury properly instructed could not adequately perform its duty....");
99. United States v. J.B. Williams Co., 498 F.2d 414, 428-29 (2d Cir. 1974) ("'[T]he practical abilities and limitations of juries'... do not arise when the jury is asked to determine only whether a television commercial has made various forbidden representations.");
100. Farmers-Peoples Bank v. United States, 477 F.2d 752, 757 (6th Cir. 1973) (same);
101. Rogers v. Loether, 467 F.2d 1110, 1118 (7th Cir. 1972) ("The 'practical abilities and limitations of juries' obviously present no obstacle-");
102. Broad. Music Inc. v. Blumonday, Inc., 818 F. Supp. 1352, 1353 (D. Nev. 1993) ("[A] jury would feasibly be able to decide questions of fact related to the issue of copyright liability.");
103. Radiola Music v. Revelation Rob, Inc., 729 F. Supp. 369, 374 (D. Del. 1990) (same);
104. TUB Corp. v. Essex Builders Co. (In re THB Corp.), 94 B.R. 797, 801 (Bankr. D. Mass. 1988) ("These breach of contract actions... present no issues that would tax the abilities of a jury.");
105. T.R. Paris & Family, Inc. v. First Nat'l Bank (In re T.R. Paris & Family, Inc.), 89 B.R. 760, 764 (Bankr. S.D. Ill. 1988) ("[T]he Court perceives no reason why trial of this case would be beyond the practical abilities and limitations of an average jury.");
106. Thomas v. Dayton Power & Light Co., 710 F. Supp. 1146, 1148 n.1 (S.D. Ohio 1988) ("[T]his Court has no question as to the ability of a jury to follow the issues-");
107. Hodges v. Virgin Atl. Airways, Ltd., 714 F. Supp. 75, 78 (S.D.N.Y. 1988) (The reason for plaintiff's termination "is the sort of question that juries typically decide....");
108. Woods v. Dunlop Tire Corp., 673 F. Supp. 117, 119 (W.D.N.Y. 1987) (same); Video Views, Inc. v. Studio 21, Ltd., No. 84 C 430, 1987 WL 13971, at 4 (N.D. Ill. July 16, 1987) ("As for the question of the practical abilities and limitations of juries, those limitations seem no greater in a case like this... where juries are often used.");
109. Pappas v. Jewel Food Stores Div., Jewel Cos., Inc., No. 86 C 9274, 1987 WL 13416, at *2 (N.D. Ill. July 1, 1987) ("There can be no serious doubt that this case falls within the practical abilities and limitations of juries.");
110. Palmer v. Metro-North Commuter R.R. Co., 661 F. Supp. 1178, 1180 (S.D.N.Y. 1987) ("[T]his case is no more complicated than the stockholders' derivative suit in Ross....");
111. Stasiak v. Loomis Armored, Inc., 706 F. Supp. 22, 24 (E.D. Mich. 1987) ("[A] jury could adequately perform its duties in a breach of fair representation suit.");
112. Official Creditors' Comm. of Honeycomb, Inc. v. Fidelity Bank, N.A. (In re Honeycomb, Inc.), 72 B.R. 371, 375 (Bankr. S.D.N.Y. 1987) ("The issues presented herein are not beyond the practical abilities of a jury.");
113. Educ. Testing Servs. v. Katzman, 670 F. Supp. 1237, 1243 (D.N.J. 1987) (finding that the case "is no more complex... than vast numbers of other cases tried to juries.");
114. Nat'l Automatic Sprinkler Indus. Welfare & Pension Funds v. Hopper, No. Civ. A 85-2092, 1986 WL 720462, at *4 (E.D. Mich. Dec. 30, 1986) ("[T]he Court finds no need to... deny NASI its right to a jury trial.");
115. Emerick v. McConway & Torley Corp., 650 F. Supp. 545, 547 (E.D. Pa. 1986) ("[T]he jury can properly perform its function-");
116. Stahley v. Dunoco Dev. Corp. (In re Dunoco Corp.), 56 B.R. 137, 139 (Bankr. CD. Cal. 1985) ("[T]his court also finds that none of the issues involved herein is too complex for a meaningful jury determination.");
117. Hassett v. Weissman (In re O.P.M. Leasing Servs., Inc.), 48 B.R. 824, 826 (S.D.N.Y. 1985) ("This case is not so detailed or confusing as to preclude the use of a jury.");
118. Lombard-Wall, Inc. v. New York City Hous. Dev. Corp. (In re Lombard-Wall, Inc.), 48 B.R. 986, 993 (S.D.N.Y. 1985) ("This case is not so complex or difficult as to be beyond the practical abilities of a jury.");
119. Quaker City Gear Works, Inc. v. Skil Corp., No. 79-2287, 1983 WL 679, at *3 (E.D. Pa. Sept. 21, 1983) ("[T]his case is not one in which due process mandates that it not be tried to a jury.");
120. Holmstrom v. Coastal Indus., Inc., 645 F. Supp. 963, 996 (N.D. Ohio 1984) ("[T]he Court finds... that this action is not so complex... to make it beyond the understanding and capabilities of a jury.");
121. Broad. Music, Inc. v. Club 30, Inc., 567 F. Supp. 36, 38 (N.D. Ind. 1983) ("[T]he questions involved in a suit such as this are well within the abilities of a jury.");
122. Salomon v. Luzar (In re Black & Geddes, Inc.), 25 B.R. 278, 280 (Bankr. S.D.N.Y. 1982) ("[T]his case is not so complex or difficult as to be beyond the practical abilities of a jury.");
123. Davis-Watkins Co. v. Serv. Merch. Co., 500 F. Supp. 1244, 1251 (M.D. Tenn. 1980) ("This issue is not too complex for a jury of laymen to decide.");
124. Kinzel v. Allied Supermarkets, Inc., 88 F.R.D. 360, 364 (D. Mich. 1980) ("The facts are no more complicated than those in antitrust and shareholder's derivative suits where jury trials have been permitted.");
125. Oil, Chem. & Atomic Workers, Int'l Union, Local 4-23 v. Texaco, Inc., 88 F.R.D. 86, 89 (E.D. Tex. 1980) ("[T]here are no practical limitations on the abilities of a jury to decide the issues in this case.");
126. Broad. Music, Inc. v. Papa John's, Inc., No. F 78-119, 1979 WL 1060, at 3 (N.D. Ind. Feb. 5, 1979) ("The court does not doubt... the questions involved are well within the abilities of a jury.");
127. Guerrero v. Garza, 464 F. Supp. 509, 509-10 (W.D. Wis. 1978) ("[A] jury would possess the practical ability to decide whether [the statute] has been violated-");
128. Chappell & Co. v. Pumpernickel Pub, Inc., 79 F.R.D. 528, 530 (D. Conn. 1977) ("But surely a jury is capable of awarding statutory minimum damages....");
129. Cleverly v. W. Elec. Co., 69 F.R.D. 348, 351 (W.D. Mo. 1975) ("[T]he nature of the issue or the computation of the back pay award would [not] be beyond the practical capabilities of a jury.");
130. Prudential Oil Corp. v. Phillips Petroleum Co., 392 F. Supp. 1018, 1023 (S.D.N.Y. 1975) ("[T]his court has not been persuaded that... a jury would be incapable of determining the issues given to it.");
131. Van Ermen v. Schmidt, 374 F. Supp. 1070, 1075-76 (W.D. Wis. 1974) ("The issues presented here are no different in nature from those ... typically tried to a jury.");
132. Richards v. Smoltich, 359 F. Supp. 9, 11 (N.D. Ill. 1973) ("Our case involves a simple factual situation-").
133. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 n.4 (1989) ("This quite distinct inquiry into whether Congress has permissibly entrusted the resolution of certain disputes to an administrative agency or specialized court of equity, and whether jury trials would impair the functioning of the legislative scheme, appears to be what the Court contemplated when, in Ross v. Bernhard, it identified 'the practical abilities and limitations of juries' as an additional factor to be consulted in determining whether the Seventh Amendment confers a jury trial right." (citation omitted));
134. Tull v. United States, 481 U.S. 412, 418 n.4 (1987) ("The Court has also considered the practical limitations of a jury trial and its functional compatibility with proceedings outside of traditional courts of law in holding that the Seventh Amendment is not applicable to administrative proceedings.").
135. See Cellular Dynamics, Inc. v. MCI Telecomms. Corp., No. 94 C 3126, 1997 WL 285830, at *8 n.10 (N.D. Ill. May 23, 1997) ("[T]he Court has since found this third criterion relevant only to the determination of 'whether Congress has permissibly entrusted the resolution of certain disputes to an administrative agency or specialized court of equity, and whether jury trials would impair the functioning of the legislative scheme.' Accordingly, the court will not consider this criterion in the instant case." (citation omitted)) (quoting Granfinanciera, 492 U.S. at 42 n.4); Younis Bros. & Co. v. Cigna Worldwide Ins. Co., 882 F. Supp. 1468, 1474 n.16 (E.D. Pa. 1994) ("Subsequently the Court narrowed the inquiry to the first two [Ross] factors."); Cont'l Bank, N.A. v. Everett, No. 90 C 1476, 1994 WL 171660, at *2 (N.D. Ill. Mar. 30, 1994) ("A third factor cited by the Ross court, the practical abilities and limitations of juries, has been relegated to instances where Congress has entrusted the resolution of certain disputes to an administrative agency or specialized court of equity.");
136. Brisk v. City of Miami Beach, 726 F. Supp. 1305, 1314 (S.D. Fla. 1989) ("[S]ince Ross, the Court has on several occasions addressed the seventh amendment question without once considering the practical abilities and limitations of juries.");
137. Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 478 F. Supp. 889, 926 (E.D. Pa. 1979) ("[T]he Ross footnote may not be read as requiring or permitting the consideration of 'the practical abilities and limitations of juries' in determining whether the constitutional right to trial by jury extends to matters committed by Congress or the common law to federal district courts."), vacated, In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069 (3d Cir. 1980).
138. The risk of mistake carries with it the additional private cost to the parties of conducting two complex trials, before different decisionmakers, regarding the same issues. These risks might be obviated by interlocutory review under the collateral order doctrine or by application for a writ of mandamus. See Will v. Hallock, 546 U.S. 345, 349 (2006) ("[T]he collateral order doctrine accommodates a 'small class' of rulings, not concluding the litigation, but conclusively resolving 'claims of right separable from, and collateral to, rights asserted in the action.' The claims are 'too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.'" (citations omitted) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)));
139. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976) ("[T]he writ 'has traditionally been used in the federal courts only "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.*"" (quoting Will v. United States, 389 U.S. 90, 95 (1967)) (citations omitted)).
140. See supra note 4.
141. The district courts can empanel juries with as few as six members. See Colgrove v. Battin, 413 U.S. 149, 160 (1973) ("[W]e conclude that a jury of six satisfies the Seventh Amendment's guarantee of trial by jury in civil cases."). A jury reduced in size from an original six (due to illness or disability, for example) can return a verdict but only upon agreement of the parties. See FED. R. CIV. P. 48 ("Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members."). To avoid the possibility of mistrial due to illness or disability, and a corresponding reduction in the number of jurors continuing to serve, district courts regularly empanel juries comprised of seven or eight jurors, each of whom deliberates the verdict, and thereby provides a "cushion" in the event of the loss of a juror. See id. ("A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused ....").
142. Specialized juries are already available, as a practical matter, through arbitration. Put differently, the benefits of special juries can be obtained by the parties simply by agreeing to private arbitration before a panel of industry or other experts. The practical consequence of institutionalizing special juries, then, is the creation of a procedure that would allow one party's preference for an expert jury to trump another party's preference for a lay jury given that "special juries" are available when both parties consent.
143. See supra note 5.
144. Granfínanciera, S.A. v. Nordberg, 492 U.S. 33, 52 (1989) ("Congress [cannot] conjure away the Seventh Amendment by mandating that traditional legal claims be brought there or taken to an administrative tribunal.").
145. See Osborn v. Haley, 549 U.S. 225, 252 (2007) ("The Seventh Amendment, which preserves the right to a jury trial in suits at common law, we have held, does not apply to proceedings against the sovereign."). Congress, by statute, authorizes trial by jury in a limited category of tax disputes, however. See 28 U.S.C. § 2402 (2006) (authorizing trial by jury upon demand of either party in cases involving claimed overpayment of taxes and seeking refund of amount overpaid).
146. Legal scholars who attempted to define complexity have recognized the multifaceted nature of case complexity but do not reach a consensus as to what factors give rise to case complexity. See, e.g., Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decision Making by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert Litan ed. 1993) (defining complexity in one of three ways: dispute complexity (number of parties and issues in a case), evidence complexity (the quantity, technicality, consistency, and reliability of evidence), and decision complexity (difficulty of legal issues and chains of logic);
147. Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1, 3-4 (1992) (defining a legal system as complex "to the extent that its rules, processes, institutions, and supporting culture possess four features: density, technicality, differentiation, and indeterminacy or uncertainty");
148. Thomas D. Rowe, Jr. & Kenneth D. Sibley, Beyond Diversity: Federal Multiparty, Multiforum Jurisdiction, 135 U. PA. L. REV. 7, 23 (1986) (number of parties in a case);
149. Judith Resnik, Falling Faith: Adjudicatory Procedure in Decline, 53 U.CHI. L. REV. 494, 511 (1986) (number of parties);
150. Richard O. Lempert, Civil Juries and Complex Cases: Let's Not Rush to Judgment. 80 MICH. L. REV. 68, 84 (1981) (categorizing complexity in one of three categories: trial length, voluminous evidence, and complex legal standards). Many factors highlighted do not have an effect on the jury, however.
151. See Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. CHI. L. REV. 337, 338 n.7 (1986) (providing an extensive list of factors that could make a case complex, including "novel procedural, choice-of-law, substantive, and remedial issues."). While procedural novelty or complicated legal issues may increase the amount of work for a trial judge, such issues are not presented to a jury because they involve legal issues and are typically resolved at the pretrial phase before a jury is even empanelled. Because the definition of complexity can change as the context changes, scholars attempt to provide an exhaustive list to capture the fluid-nature of complex litigation.
152. See e.g., Jeffrey W. Stempel, A More Complete Look at Complexity, 40 ARIZ. L. REV. 781, 786-99 (1998) (complexity is a "hydra-headed" beast that consists of any number of nineteen factors including, number of parties, number of claims, multiple forums, length of litigation, difficulty ascertaining the relevant law, technical nature of the case, difficulty of legal issues in the case, difficulty in choosing or administering remedies, density of legal context, and difficulty of evidence). An exhaustive list of factors may provide an all-compassing definition but in so doing become meaningless.
153. See Jay Tidmarsh, Unattainable Justice: The Form of Complex Litigation and the Limits of Judicial Power, 60 GEO. WASH. L. REV. 1683, 1715 (1992) ("'Laundry list' definitions run a great risk of overinclusion-improperly designated cases under any category on the list will now be deemed complex-").
154. See Royal Furgeson, Civil Trials R.I.P.? Can It Actually Happen in America?, 40 ST. MARY'S L.J. 795, 810-11 (2009) (arguing that critics of the jury system who advocate for sweeping reforms base their criticism on anecdotal evidence primarily drawn from specific cases).
155. See Joel Cooper et al., Complex Scientific Testimony: How Do Jurors Make Decisions?, 20 LAW & HUM. BEHAV. 379 (1996);
156. Terry Honess et al., Juror Competence in Processing Complex Information: Implications from a Simulation of the Maxwell Trial, CRIM. L. REV. 763 (1998); Heuer & Penrod, supra note 6
157. Richard Lempert, Civil Juries and Complex Cases: Taking Stock after Twelve Years in VERDICT: ASSESSING THE CIVIL JURY SYSTEM, supra note 41, at 181;
158. Joseph Sanders, Jury Deliberation in a Complex Case: Havener v. Merrell Dow Pharmaceuticals, 16 JUST. SYS. J. 45 (1993);
159. Irwin A. Horowitz & Kenneth S. Bordens, An Experimental Investigation of Procedural Issues in Complex Tort Trials, 14 LAW & HUM. BEHAV. 269 (1990);
160. Kenneth S. Bordens & Irwin Horowitz, Mass Tort Civil Litigation: The Impact of Procedural Changes on Jury Decisions, 73 JUDICATURE 22 (1989);
161. MOLLY SELVIN & LARRY PICUS, THE DEBATE OVER JURY PERFORMANCE: OBSERVATIONS FROM A RECENT ASBESTOS CASE (1987). Studies that assess juror competence typically use a methodology similar to the earlier research of Harry Kalven and Hans Zeisel who examined jury-judge agreement in case outcomes. In their study, trial judges filled out a questionnaire, asking how they would have decided a case. Their hypothetical verdict was then compared to the jury's actual verdict. Kalven and Zeisel conducted this study with 3,576 criminal cases and over 4,000 civil cases. They found that there was jury-judge agreement 78% of the time for both criminal and cases.
162. HARRY KALVEN & HANS ZEISEL, THE AMERICAN JURY 58, 63 (1966). This methodology has been replicated in subsequent studies and yielded similar judge-jury agreement rates.
163. See, e.g., Theodore G. Eisenberg et al., Judge-Jury Agreement in Criminal Cases: A Partial Replication of Kalven & Zeisel's The American Jury, 2 J. OF EMPIRICAL LEGAL STUD. 171 (2005);
164. Paula L. Hannaford et al., Permitting Jury Discussions During Trial: Impact of the Arizona Reform, 24 LAW & HUM. BEHAV. 359 (2000);
165. Larry Heuer & Steven D. Penrod, Trial Complexity: A Field Investigation of Its Meaning and Its Effects, 18 LAW & HUM. BEHAV. 29 (1994);
166. Hans Zeisel & Shari Seidman Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 STAN. L. REV. 491 (1978).
167. According to 2000 U.S. Census data, 49.1% of the national population is male. U.S. CENSUS BUREAU, PROFILE OF GENERAL DEMOGRAPHIC CHARACTERISTICS: 2000, GEOGRAPHIC AREA: UNITED STATES 1 (2000), http://censtats.census.gov/data/US/ 01000.pdf thereinafter UNITED STATES DEMOGRAPHICS] Similarly, 49.8% of the population for Washington state is male. U.S. CENSUS BUREAU, PROFILE OF GENERAL DEMOGRAPHIC CHARACTERISTICS: 2000, GEOGRAPHIC AREA: WASHINGTON 1 (2000), http://censtats.census.gov/data/WA/04053.pdf [hereinafter WASHINGTON DEMOGRAPHICS].
168. The demographic statistics for age in this study are significantly higher than the national and state Census data. According to the 2000 U.S. Census statistics, the median age of a citizen of the United States and Washington state is 35.3. See UNITED STATES DEMOGRAPHICS, supra note 44, at 1; WASHINGTON DEMOGRAPHICS, supra note 44, at 1. One reason for this disparity may be the function of older individuals opting more frequently to participate in studies than younger individuals (especially ones that are uncompensated), thus making this sample older than the general population. See Laurence J. Severance et al., Toward Criminal Jury Instructions That Jurors Can Understand, 75 J CRIM. L. & CRIMINOLOGY 198, 216-17 (1984) (reporting that recruited ex-jurors who were older, more educated, and had more prior jury experience than when they recruited individuals who were at the courthouse waiting assignment for a courtroom to participate in jury selection).
169. The highest educational attainment in this study is different from state and national statistics collected by the U.S. Census. Nationally, 80.4% of citizens have a high school diploma or GED equivalent, which is lower than the population of this study. Similarly, 15.5% of national citizens have a bachelor's degree or higher, which is lower than the participants of the study. State statistics regarding education also indicate that the population of this study had a slightly higher educational attainment; 87.1% of citizens surveyed by the Census Bureau hold a high school diploma or equivalent. With respect to postsecondary education, the Census bureau reported that 24.4% of the national population had a bachelor's degree or higher, which is lower than survey participants. In Washington, 27.7% of citizens hold a bachelor's degree or higher. KURT J. BAUMAN & NIKKI L. GRAF, U.S. CENSUS BUREAU, EDUCATIONAL ATTAINMENT: 2000, at 3 (2000), http://www.census.gov/prod/2003pubs/c2kbr-24.pdf. There are two explanations for demographic difference with the survey data and the Census Bureau statistics. First, the Census Bureau does not report education statistics of individuals between the ages of 18 to 24. U.S. Census Bureau, Profile of General Demographic Characteristics: 2000, Geographic Area: Washington, http://factfinder.census.gov/servlet/QTTable?-bm=n&-lang= en&qr-name=DEC-2000-SFl-U-DPl&ds-name=DEC-2000-SFl-U&geo- id=04000US53. Another explanation may be the result of a typical problem encountered with jury research: people who are more educated tend to participate in jury studies, which may result in a sample that is not a true cross-section of the community at large. See Severance et al., supra note 45.
170. Many scholars have used real cases when conducting research. See, e.g., Susan Poser et al., Measuring Damages for Lost Enjoyment of Life: The View from the Bench and the Jury Box, 27 LAW & HUM. BEHAV. 53 (2003) (used a case summary based on a real automobile case to compare two jury instructions on lost enjoyment of life);
171. Irwin A. Horowitz & Lynne ForsterLee, The Effects of Note-Taking and Trial Transcript Access on Mock Jury Decisions in a Complex Civil Trial, 25 LAW & HUM. BEHAV. 373 (2001) (videotaped a trial simulation based on an actual toxic tort trial);
172. Reid Hastie et al., A Study of Juror and Jury Judgments in Civil Cases: Deciding Liability for Punitive Damages, 22 LAW & HUM. BEHAV. 287 (1998) (used the facts of four civil cases to test juror ability to distinguish between negligent and reckless conduct for purposes of awarding punitive damages). One concern with this method is the ability to create a hypothetical scenario that controls the facts and evidence presented to study participants. Given that participants in this study were not compensated, the survey instrument had to be a reasonable length but still appropriately involved to test individuals on specific points of complexity.
173. See supra note 2. While each scenario highlighted only one type of complexity, we appreciate that as practical matter that there are times where procedural and factual complexity are not mutually exclusive. In multi-claim, multiparty cases, the evidence itself may not be technical or esoteric, but the factual difficulty for jurors is to sift through the voluminous amounts of evidence (that may or may not be transactionally related) and determine what information is relevant and in which circumstances. To avoid this overlap, however, the scenario featuring procedural complexity involved only three parties and three claims so as to prevent the confusion over determining the purpose of evidence.
174. This decision was a conscious one because the questions were sufficiently direct to replicate decisionmaking when a special verdict or general verdict with interrogatories is used. As a practical matter, courts are not required to instruct the jury when special verdict forms are used, and, as such, the absence of instructions is not significant. FED. R. CIV. P. 49(a) only requires a trial judge to provide instructions that are sufficient for jurors to determine each factual issue before them. Neal v. Carey Canadian Mines Ltd., 548 F.Supp. 357, 385 (E.D. Pa. 1982);
175. see also Aerotech Res., Inc. v. Dodson Aviation, Inc., 191 F.Supp.2d 1209, 1220 (D.Kan. 2002) (special verdict forms require juries to make findings of fact and then court applies the law to those facts, therefore instructing the jury on the law is unnecessary). In addition, previous studies have shown that there is no added benefit to having instructions unless they have been revised in plain English.
176. See, e.g., Amiram Elwork et al., Juridic Decisions: In Ignorance of the Law or In Light of It?, 1 LAW & HUM. BEHAV. 163, 175 (1977) (finding no significant difference in jury instruction comprehension rates on the part of participants who had no instruction versus the unrevised pattern instruction but found improvement when participants received the revised, plain English instructions). Finally, the inclusion of separate packets of instructions for the three hypothetical scenarios, numbering anywhere from twenty-five to forty-five instructions each, would have likely chilled participation.
177. The scenario described a nighttime motor vehicle accident on an interstate freeway. The plaintiff testified that the defendant cut him off while changing lanes and he swerved off the freeway into an adjacent field to avoid a collision. The plaintiff testified that he sustained neck and back injuries and that he suffered upper body pain for two months following the accident and continues to suffer permanent, intermittent lower back pain. The plaintiff presented an accident reconstruction expert who testified about the differences in grade between the freeway and field and the force and impact of the vehicle as it departed the road and entered the field. The defendant testified that he simply changed lanes and was nowhere near the plaintiff and that the plaintiff responded to a nonexistent threat. The defendant also presented testimony from an accident reconstruction expert to show that even if the plaintiffs actions were justified, the level of the freeway in relation to the field was such that the he simply coasted to a stop rather than crashing into the field. The defendant also presented testimony from a biomechanics expert who testified that given the location of the accident (namely the flat surface of the field), there was no way the plaintiff could have suffered bodily injury.
178. The scenario involved a breach of contract action in which the plaintiff, a manufacturer of engine mounts for Airbus commercial aircraft, alleged that the defendant, a corporation that makes metal forgings for commercial aircrafts, untimely delivered its order which led to additional expenses and untimely delivery to its customers. The plaintiff claims that as a result of the defendant's delays in delivery, it incurred additional expenses to operate overtime to overcome the effects of the late and erratic deliveries. Although the plaintiff's efforts to overcome the effects of the late deliveries were largely successful, several deliveries to Airbus were still late. The plaintiff incurred costs associated with the additional labor expenses and late deliveries. The defendant asserted an affirmative defense against the plaintiff, arguing that their contract was unenforceable because the individual who negotiated the contract did not have the authority to execute the agreement for the defendant. In addition, the defendant also claimed that the person who signed the contract for the company was incapacitated and agreed to financially unfavorable contract terms that the company has never done. The defendant also asserted an unrelated counterclaim against the plaintiff for failing to make payment on a different contract. The defendant also filed suit against a third-party defendant claiming that its deliveries to plaintiff were late only because the third-party defendant's late delivery of the raw materials from which the forgings are made.
179. Procedural complexity is necessarily implicated because multiple related and unrelated claims can be asserted in a single action, meaning that jurors may hear evidence regarding several legal and factual issues directed that may or may not be related. See FED. R. CIV. P. 13(a) (requiring the assertion of compulsory counterclaim if it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim"); FED. R. CIV. P. 13(b) (authorizing the assertion of a transactionally unrelated, "permissive" counterclaim against an opposing party provided there is an independent jurisdictional basis); FED. R. CIV. P. 14(a) (permitting a defendant to implead a third-party defendant into an action); see 6 WRIGHT ET AL., supra note 2, § 1401, at 10 ("The current federal counterclaim and crossclaim practice is the end product of a long period of judicial and legislative development designed to facilitate the adjudication of all disputes that exist between the parties to an action."); id. § 1442, at 289 ("The primary purpose of any procedure authorizing the impleader of third parties is to promote judicial efficiency. ..."). The emphasis on judicial economy is apparent in the liberal constructions of Rules 13 and 14. See, e.g., Pipeliners Local Union No. 798 v. Ellerd, 503 F.2d 1193, 1198 (10th Cir. 1974) ("[T]he terms 'transaction' and 'occurrence' contained in Rule 13(a)... [are] flexible and realistic constructions in order to effect 'judicial economy'-"); Price v. CTB, Inc., 168 F. Supp.2d 1299, 1302 (M.D. Ala. 2001) (once a third-party plaintiff impleads a third-party defendant, the third-party defendant is permitted to assert separate and independent claims).
180. This procedural posture was selected because of the practical limits on the court's ability to sever claims and defenses. The initial claim and affirmative defenses are not easily separated and the third party claim should be adjudicated in the same action as the initial claim to ensure consistence of result. The permissive counterclaim would be subject to potential severance, given that it is transactionally unrelated, but we accounted for this possible objection by basing the plaintiffs explanation for breaching the other contract (specifically not paying in a timely fashion) because of the defendant's failure to timely perform on the contract. We believed that such a configuration would likely result in a single trial of all claims and defenses because of the limited options available to sever claims and defenses while simultaneously ensuring fairness and consistency of outcome.
181. The scenario involved what appears to be a fairly mundane conversation between the plaintiff, a retired lawyer, and the defendant, a vice president at a corporation in which the plaintiff holds shares, neither of whom knew anything about the other's background other than they were members of the same health club. The plaintiff spoke with the defendant regarding his investment in a corporation, his dissatisfaction with the stock's market performance and his interest in selling his stake. The defendant offered to purchase the plaintiffs shares, claiming that he believed the stock was undervalued in light of an earnings report the company issued publicly a few months earlier. The parties agreed to the deal and the plaintiff sold his stock to the defendant. Unbeknownst to the plaintiff, the defendant was married to the daughter of the founder and chief executive officer of the corporation. Although the defendant was never a member of the board of directors and was not involved in any of the negotiations leading to the acquisition, several of his family members were executive officers in the company and members of the board of directors. The plaintiff alleged that the defendant violated the federal securities law when the defendant purchased the plaintiff's stock without first disclosing nonpublic information about a pending acquisition of the company by another corporation.
182. A frequently used example regarding complex litigation involves intellectual property matters. Such cases would be difficult to test in this context because in those disputes, a juror is typically required to compare multiple objects to determine whether infringement occurred. For example, the copyright holders of the David Bowie and Queen song "Under Pressure" accused rapper Vanilla Ice of copyright infringement because he used the memorable bass line of the song without permission and using it verbatim in his chart-topping hit "Ice Ice Baby." In that case, the jury would have to listen to both songs and determine whether the two are similar enough to find a copyright violation. This would have been difficult given the required length of a survey or the fact such hypotheticals would require physical demonstrations.
183. Before analyzing any trends, it is necessary to determine whether the sample obtained was a normal distribution. A normal sample should resemble a bell curve that is symmetrical and distributed around a mean of zero. Without a normal distribution, it would be extremely difficult to perform any particular analyses. For more about normal distribution of sample data, see generally WILLIAM FELLER, AN INTRODUCTION TO PROBABILITY THEORY AND ITS APPLICATION (3d ed. 1968). An examination of the data revealed that scenario one was not normally distributed. The curve in this circumstance was "negatively skewed," meaning that an unexpectedly high number of participants got the questions correct. To eliminate this problem, transformations can be used to correct for non-normality, which was done in this case. This transformation, however, did not change any of the outcomes of the statistical tests; therefore, the data was left in its original form. But taking into account the abnormal distribution, parametric statistics (i.e., ANOVA) were used to analyze the data in its original form, but nonparametric statistics (i.e., the Friedman test) were also used to verify that the level of significance was the same for both kinds of analyses. Parametric statistics refer to tests that require a sample to have a normal, bell curve distribution fits a normal distribution. See, e.g., DAVID J. SHESKIN, HANDBOOK OF PARAMETRIC AND NONPARAMETRIC STATISTICAL PROCEDURES 42 (3d ed. 2004). Nonparametric statistics refer to tests that are used when the sample does not require a sample to have a normal distribution. See, e.g., id.; B.E. BRODSKY & B.S. DARKHOVSKY, NON-PARAMETRIC STATISTICAL DIAGNOSIS: PROBLEMS AND METHODS (2000). The Friedman test is similar to the two-way ANOVA test because it detects differences in treatments across multiple tests, but is used when a sample does not have a normal distribution.
184. See, e.g., FREDERICK J. GRAVETTER & LARRY B. WALLNAU., STATISTICS FOR THE BEHAVIORAL SCIENCES 659 (7th ed. 2006).
185. See infra Part II.B.1.a.
186. One limitation to this study was the lack of jury instructions to help participants understand the rules concerning compulsory and permissive claims in determining liability. The use of jury instructions, however, would have created a potential confounding variable in determining participant comprehension in the more complex scenarios. The lack of instructions for scenario two does not explain the inconsistent application of determining the relationship between an unrelated counterclaim and third-party claim. The 178 participants who answered one question correctly for scenario two highlights the incomprehension of the procedural posturing of the different claims.
187. For example jurors may not conceptually or intuitively understand affirmative defenses such as accord and satisfaction, estoppels, laches, res judicata, or statute of frauds. See FED. R. CIV. P. 8(cXl).
188. The twenty-two individuals indicated that they had some college or an associate's degree. These individuals were included with those who had a high school diploma or GED equivalent.
189. Both the distributions in this table violate the assumption that 20% of all cells must have five or more observations, and no cells with zero count. See SHARON LAWNER WEINBERG & SARAH KNAPP ABRAMOWITZ, DATA ANALYSIS FOR THE BEHAVIORAL SCIENCES USING SPSS 539 (2d ed. 2002). When this assumption is not met, the Pearson's Chi-Square statistic is more sensitive to smaller sample sizes and affects the significance value. See CHAVA FRANKFORT-NACHMIAS & ANNA LEON-GUERRERO, SOCIAL STATISTICS FOR A DIVERSE SOCIETY 369 (4th ed. 2005). Given that both statistics in Table 2 are statistically insignificant, we reported the chi-square statistic without concern that it is grossly inaccurate.
190. Participants who did not graduate from high school also performed well with 66.7% of individuals answering one question correctly. Given that this subsample only contained six individuals, it does not necessarily provide a meaningful picture in relation to other categories that had more cases.
191. The participants responded to the survey individually and, as such, the potential for improved decisionmaking due to the presence of six or eight decisionmakers in the same room could not be tested. The participant's inability to decide claims in an analytically consistent fashion would be eliminated, of course, so long as any one juror identified the logical path for resolving the various claims and defenses and the other jurors followed this lead. The survey results suggest, however that there cannot be any assurance that such an individual would necessarily be found on every six-or eight-person jury.
192. A special verdict: may be defined as a determination by the jury, in lieu of a general verdict, of only the facts of a case, referring the decision of the cause on those facts to the court. A special verdict differs from a general verdict in that the jury in rendering a special verdict finds facts without reference to the success of either litigant, while the jury in rendering a general verdict finds directly in general terms for one party or the other. 75B AM. JUR. 2D. Trial §§ 1577-78 (2007). Special verdicts are authorized by Federal Rule 49(a), which provides the district court with discretion to: require a jury to return only a special verdict in the form of a special written finding on each issue of fact. The court may do so by: (A) submitting written questions susceptible of a categorical or other brief answer, (B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or (C) using any other method that the court considered appropriate. FED. R. CIV. P. 49(a). These verdicts are especially useful in complex litigation. See FED. JUDICIAL CTR., MANUAL FOR COMPLEX LITIGATION § 11.633, at 123 (4th ed. 2004) ("When special verdicts are used, the jurors return answers to each question or each issue submitted to them, rather than a general verdict, and the answers to the questions or issues submitted are considered a special verdict consisting of a statement of facts the jury have found from which the judge determines the appropriate judgment."); 9B WRIGHT ET AL., supra note 2, § 2504.1, at 100 ("In cases involving multiple claims, theories of liability, plaintiffs, or defendants, the district court may opt for a special verdict-").
193. The district courts possess discretion regarding the form of verdict and we believe should exercise this discretion in favor of such verdicts in all multiparty, multi-claim cases. See, e.g., Pouillon v. City of Owosso, 206 F.3d 711, 714 (6th Cir. 2000) ("A trial judge's decision whether or not to submit a dispute to the jury through special interrogatories is within the trial court's sound discretion.").
194. The district courts possess discretion to instruct the jury before, after, or both before and after closing arguments. See FED. R. CIV. P. 51(b)(3) (a district judge "may instruct the jury at any time before the juiy is discharged.")- See also 9C WRIGHT ET AL., supra note 2, § 2555, at 107 (stating that Rule 51, "after the 1987 amendments, authorizes the trial court to instruct the jury at its own election either before or after counsel make their final summations to the jury... [however] many district judges had allowed the parties to stipulate to the giving of jury instructions before final arguments, typically in states that follow that practice." (footnote omitted)).
195. We believe the use of multiple general verdicts in multiparty, multi-claim cases substantially increases the potential for confusion because the jury may be unable to break down the claims and defenses for purposes of making thumbs up/thumbs down decisions with respect to each claim. We also believe that the use of general verdicts increases the potential for foot-fault by counsel who fail timely to object to perceived inconsistencies in the various general verdicts and who therefore lose the ability to object should the court discharge the jury before the inconsistency is spotted.
196. The use of advisors will be controversial but is not without precedent. See In re Peterson, 253 U.S. 300, 312 (1920) ("Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause." (citation omitted)); Reilly v. United States, 863 F.2d 149, 156-57 (1st Cir. 1988) ("[T]he appointment of a technical advisor must arise out of some cognizable judicial need for specialized skills-The modality is... to be engaged only where the trial court is faced with problems of unusual difficulty, sophistication, and complexity, involving something well beyond the regular questions of fact and law with which judges must routinely grapple."). We appreciate that many litigants would react negatively to the use of technical advisors, fearing that such a person might become the de facto decisionmaker. We therefore recognize that the use of advisors will occur rarely, if ever. Nevertheless, we offer it as one devise that at least might be used in at least some cases.
197. Introductory instructions have been shown to be effective in improving jury comprehension. See, e.g., Martin J. Bourgeois et al., Nominal and Interactive Groups: Effects of Preinstruction and Deliberations on Decisions and Evidence Recall in Complex Trials, 80 J. OF APPLIED PSYCHOL. 58 (1995);
198. Lynne ForsterLee et al., Juror Competence in Civil Trials: Effects of Preinstruction and Evidence Technicality, 78 J. OF APPLIED PSYCHOL. 14 (1993);
199. Vicki L. Smith, Impact of Pretrial Instruction on Jurors' Information Processing and Decision Making, 76 J. OF APPLIED PSYCHOL. 220 (1991) (participants presented with pre-and postinstruction had higher comprehension rates than those who did not receive instruction in both instances; however, such instruction timing did not affect verdict). Such comprehension can be improved further by providing copies of the instructions to the jurors.
200. See, e.g., Geoffrey P. Kramer & Dorean M. Koening, Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension Project, 23 U. MICH. J.L. REFORM 401 (1990) (jury study participants showed greatest comprehension when presented with instructions both orally and in written form); Heuer & Penrod, supra note 6, (jury study showing that such instructions aid comprehension, retention and application of instructions to case).
201. See NINTH CIRCUIT JURY INSTRUCTIONS COMM., MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE NINTH CIRCUIT 24 (2007), available at http://207.41.19.15/web/sdocuments.nsf/lae2dda702db203388256aae0064d796/ $FILE/ Error! Hyperlink reference not valid. ("Practices vary among judges on how complete instructor instructions should be-There is no right or wrong way to accomplish this task. It depends on the nature of the case, the preliminary rulings and the legal culture of each district.").
202. To refresh and reinforce the matters described in the introductory instructions, each juror should receive her own packet to which she can refer throughout trial. The learning process cannot be expected to occur instantaneously and refreshers over the course of time, as jurors have concrete items of evidence to consider when re-reading the instructions, may be essential to a full understanding of a matter.
203. The use of introductory instructions has some detractors, however. See Leonard B. Sand & Steven Alan Reiss, A Report on Seven Experiments Conducted By District Court Judges in the Second Circuit, 60 N.Y.U. L. REV. 423, 441 (1985) (found that some attorneys and judges were hesitant of introductory instructions because it may increase workload and should therefore be used sparingly).
204. See, e.g., Horowitz & ForsterLee, supra note 47 (note-taking juries could better distinguish between probative evidence and red herrings as well as better allocate damage awards in cases involving multiple plaintiffs who more or less entitled different awards); David L. Rosenhan, et al., Note-Taking Can Aid Juror Recall, 18 LAW & HUM. BEHAV. 53 (1994);
205. Lynne Forster Lee, et al., Effects of Notetaking on Verdicts and Evidence Processing in a Civil Trial, 18 LAW & HUM. BEHAV. 567 (1994) (note-taking jurors made correct distinctions in assigning liability and compensation among four plaintiffs and recalled more probative evidence).
206. The typical objections involve concerns that jurors might become too attached to their notes rather than their independent recollections; that jurors might miss important evidence because they are taking notes about another matter, or fail to discern witness mannerisms will testifying that might impact credibility because they are writing rather than watching.
207. The use of the term "per side" is intentional and reflects that the time would be divided equally between the various parties on opposite sides of the "v". In the context of multiparty litigation, for example, the plaintiff group would be allowed to address the jury for sixty minutes (however divided between them) and then the defendant group would be allowed to address the jury for an additional sixty minutes. Of course, the district court would and should retain discretion to allocate time among the parties to ensure that unique positions are adequately vetted and litigants advancing them adequately protected.
208. See, e.g., B. MICHAEL DANN, ARIZONA SUPREME COURT COMMITTEE ON MORE EFFECTIVE USE OF JURIES, JURORS: THE POWER OF 12 (1994), http://www.supreme. state.az.us/jury/Jury/jury1k3.htm ('Trial judges and attorneys should be made more aware of the advantages of interim summaries... especially long trials or trials in unusually complex cases.").
209. The parties would be allowed, of course, to object to summary statements that are inconsistent with the evidence, but should not be permitted to preclude a party from explaining how the evidentiary record fits with what the jury will likely hear down the road-indeed, in the context of a lengthy trial this might be the most important benefit from the perspective of jury comprehension.