Is our civil justice system at a breaking point? And, if so, is this why civil litigants, particularly plaintiffs, are opting away from the courthouse venue, simply unable to get to trial before everyone's hair turns gray (or things become more terminal)?
Good trial lawyers know how to keep a jury focused and interested. They know how to present the evidence skillfully, dramatically, and expeditiously. By contrast, some lawyers over-try their cases, call too many witnesses, make extended and unnecessary arguments, and thereby lose the jury's interest, as well as the judge's patience. And there are enough of these lawyers that, if not controlled or properly reined in, can literally bring the system to a grinding halt.
To expedite trials and control lawyer excesses, judges have sometimes imposed limits. Some judges restrict the lawyer's ability to make objections or motions, limit counsel's argument to the jury, stop the lawyer's excessive interrogation of witnesses, deny requests for a recess, or restrict a lawyer's communication with her client. Some of these restrictions have been upheld as appropriate methods to administer a trial; others, by contrast, have been struck down as arbitrary impediments to the client's ability to obtain a fair trial. When they are struck down, the appellate decision, whether a civil or criminal trial, usually does not accuse the judge of being overbearing, although in some cases that would accurately describe the judge's conduct.
One pending case will test the extent of a judge's authority to run a trial efficiently and fairly. In a highly unusually move, Federal District Judge Alvin K. Hellerstein in Manhattan will be clocking the first and only wrongful death trial stemming from the horrific 9/11 attacks perpetrated nearly ten years ago by the now-deceased Osama Bin Laden, by giving each side 50 to 60 hours to present their evidence and arguments. (Full disclosure, Judge Hellerstein is a friend and former law partner of co-author Cohen).
Judge Hellerstein is an expert on 9/11 litigation. He has overseen the thousands of wrongful death and other claims related to the 9/11 attacks, and has supervised the extensive pre-trial litigation in the pending lawsuit for nearly nine years. His concern is that without effective judicial control the trial will last interminably, as the lawyers for the plaintiff -- the family of a passenger on the second plane to hit the World trade Center -- and the several defendants -- notably United Airlines and the airport security firm -- battle it out in the courtroom. It is anticipated that the parties will be calling hundreds of witnesses, presenting millions of documents, and making extensive and technical arguments. Judge Hellerstein apparently will use a stop watch to time the trial. "The time is going to be expressed not in days, but in hours," the Judge said recently. Notably, part of the Judge's thought process in taking this tack is the difficulty in seating and "keeping" jurors during these hard economic times when employers typically compensate their employee-jurors for their first two weeks of jury service only.
Needless to say, most trial lawyers probably will be horrified by Judge Hellerstein's plan, and some will use hyperbole to describe their angst, and their anxious predictions that this ruling will take hold in courtrooms around the nation. For one thing, lawyers, and probably some non-lawyer observers, view this trial almost as a jurisprudential memorial to one of the most iconic events in modern American history. To place time limits on the ability of lawyers to present their competing narratives -- tantamount to playing a speed chess match -- belittles the solemnity of trial and is arbitrary and unfair. Moreover, these lawyers argue, the concept of justice should not be strained by the use of a stop watch. Even if a lawyer, to conserve time, could intelligently choose which witness to call from among several equally important witnesses, is it fair to put the lawyer in such a difficult position? Further, is the judge's allocation of the same amount of time to each side a fair allocation? Inasmuch as the plaintiff has the burden of proof, should not the plaintiff be given more time? But since there are several defendants with potentially incompatible defenses, should not the defendants be awarded more time? And if either the plaintiff's or defendants' cases are circumstantial, proving such a case invariably requires calling more witnesses than in a non-circumstantial case.
One further point needs to be made. Reviewing courts ordinarily afford judges in civil trials far more latitude in imposing time limits and other restrictions on lawyers than they would allow in criminal trials. To be sure, there have been a few instances in which appellate courts have upheld a judge's limitation on the length of a civil trial. But, needless to say, the stakes are vastly different for criminal trials. Judges certainly have the power in criminal trials to limit the lawyer's objections and motions, and even restrict the calling or questioning of witnesses that is cumulative or irrelevant. Imposing time limits on a lawyer's argument is more problematic. Imposing unreasonable time limits on a lawyer's argument to the jury in a criminal case may be an abuse of discretion, particularly when the defendant faces severe punishment, the issues are complex, and there is no principled basis for curtailing counsel's argument. For example, a judge's restricting defense counsel's argument to one hour in a capital murder trial was an abuse of discretion -- a deadly one. As the appellate court noted: "The unreasonableness of this restriction is accentuated when it is realized that the outcome was to cast the die of fate for the whole of eternity for the defendant."
To sum up, two competing values resonate in U.S. trials. On the one hand, lawyers have a duty, both legally and ethically, to represent their clients zealously and effectively, and should be given a wide berth by the judge to fulfill that mission. By the same token, trials are time-consuming and costly for society generally. And there is a fairly long queue of parties waiting to get their turn at a trial. Moreover, justice delayed too long is also costly in terms of the burden it places on the lives and psyches of the parties. Wise judges have to balance these competing values in a way that affords the lawyer and her client a fair hearing, yet ensures that limited judicial resources are expended efficiently. And, indeed, federal rules of evidence empower trial judges to exercise reasonable control over the mode and order of interrogating witnesses to help juries ascertain the truth, avoid needless consumption of time, and prevent confusion. Just consider, for example, that Judge Lance Ito who presided over the O.J. Simpson trial took nearly a day of courtroom time in the so-called Trial of the Century to analyze whether prosecutor Marcia Clark should be allowed to wear a sympathy pin in court for one of O.J.'s victims.
What we say here may seem apostasy for those who have labored, and continue to do so, in the vineyards of the American justice system. Insisting that lawyers -- to use the well-worn metaphor -- separate the wheat from the chaff and carry only wheat in their litigation briefcases when they walk up the courthouse steps on the first day of the trial, is sound advice. How well this prescription fares inside the courtroom and, perhaps as importantly, how its implementation is reported in the media, may very well influence the traction -- and, indeed, the precedential value -- of Judge Hellerstein's experiment.