STATE OF MINNESOTA

IN SUPREME COURT

C6-84-2134

CX-89-1863

ORDER FOR HEARING TO CONSIDER PROPOSED

AMENDMENTS TO THE MINNESOTA RULES OF CIVIL

PROCEDURE AND THE MINNESOTA CIVIL TRIALBOOK

O R D E R

IT IS HEREBY ORDERED that a hearing be had before this Court in Courtroom 300 of the Minnesota Supreme Court, Minnesota Judicial Center, on February 26, 1997 at 2:00 p.m. to consider the petition of the Minnesota State Bar Association to amend the Rules of Civil Procedure and the Minnesota Civil Trialbook. A copy of the petition containing the proposed amendments is annexed to this order and may also be found at the Court's World Wide Web site: (www.courts.state.mn.us).

IT IS FURTHER ORDERED that:

1. All persons, including members of the Bench and Bar, desiring to present written statements concerning the subject matter of this hearing, but who do not wish to make an oral presentation at the hearing, shall file 12 copies of such statement with Frederick Grittner, Clerk of the Appellate Courts, 305 Judicial Center, 25 Constitution Avenue, St. Paul, Minnesota 55155, on or before February 20, 1997 and

2. All persons desiring to make an oral presentation at the hearing shall file 12 copies of the material to be so presented with the aforesaid Clerk together with 12 copies of a request to make an oral presentation. Such statements and requests shall be filed on or before February 20, 1997.

Dated: December 18, 1996

BY THE COURT:

_______________________________________

A.M. Keith Chief Justice

No. CX-84-2134

No. CX-89-1863

STATE OF MINNESOTA

IN SUPREME COURT

In re:

Amendments to Rules of Civil

Procedure and the General Rules

of Practice (Civil Trialbook)

Petition of Minnesota State Bar Association

TO THE HONORABLE JUSTICES OF THE MINNESOTA SUPREME COURT:

Petitioner Minnesota State Bar Association ("MSBA") respectfully petitions this Honorable Court to amend the Rules of Civil Procedure and the Minnesota Civil Trialbook to implement the following recommendations of the MSBA:

1. The six person jury should be considered the minimum but not the maximum (amending Minn. R. Civ. P. 48);

2. All alternates remaining at the close of a civil trial should deliberate and vote (striking Minn. R. Civ. P. 47.02 and amending Minn. R. Civ. P. 48);

3. Jurors should be permitted to question witnesses during trial with appropriate safeguards (inserting new subsection in Minn. Civ. Trialbook § 10);

4. The judge should read the substantive instructions to the jury before closing arguments (amending Minn. R. Civ. P. 51);

5. Civil juries should be provided with written copies of all instructions (amending Minn. R. Civ. P. 51).

In support of this Petition, MSBA would show the following:

1. Petitioner MSBA is a not-for-profit corporation of attorneys and judges admitted to practice law before this Court and the other courts of the State of Minnesota.

2. This Court has the exclusive and inherent power and duty to administer justice and to adopt rules of practice and procedure before the courts of this state and to establish standards for regulating the legal profession. This power has been expressly recognized by the legislature. See Minn. Stat. § 480.05 (1996).

3. This Court has adopted the Rules of Civil Procedure to govern the procedure in all suits of a civil nature. The Rules are to be construed to secure the just, speedy, and inexpensive determination of every action. See Minn R. Civ. P. 1. This Court has since amended those rules from time to time.

4. As part of the General Rules of Practice, this Court adopted the Minnesota Civil Trialbook, effective January 1, 1992. While not mandatory, the Trialbook is a declaration of the practical policies and procedures to be followed in the civil trials in all the trial courts in Minnesota. See Minn. Civ. Trialbook § 1 (1996).

5. In January of 1994, the Governing Council of the Civil Litigation Section of the MSBA established the Committee on Civil Juries and instructed it to investigate ways to improve the civil jury system in Minnesota. The Committee, made up of practitioners and judges from throughout the state, consulted with court administrators, judges who have used innovative jury participation techniques in their courtrooms, experts in jury research, and jurors themselves. The Committee also conducted focus groups. See Appendix A (Committee on Civil Juries Report). After substantial study and deliberation, the Committee issued numerous recommendations in its report. The Civil Juries Report was adopted by the Governing Council of the Civil Litigation Section of the MSBA in June 1995.

6. The Civil Litigation Section, together with the Court Rules and Administration Committee of the MSBA, submitted proposals for amendments of the Rules of Civil Procedure and the Civil Trialbook based on the Civil Juries Report to the MSBA General Assembly in June 1996. On June 21, 1996 those proposals were approved and are submitted herein to this Court. The proposed amendments are attached hereto as Appendix B.

7. The MSBA respectfully recommends and requests that this Court amend the Rules of Civil Procedure and the Minnesota Civil Trialbook as follows:

The Six-Person Jury Should Be Considered

The Minimum But Not The Maximum

8. This recommendation affects the present Rule 48 that "[t]he parties may stipulate that the jury shall consist of any number less than 12, or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury." See Minn. R. Civ. P. 48.

9. The MSBA's research shows that 8 to 12 person juries resulted in more consistent and predictable verdicts with less variability. Studies indicate that any additional costs are not appreciable. Many scholars have concluded that the change in the 1970's from a constitutional jury of 12 to 6 has depreciated the jury's value. See Richard Lempert, Uncovering Nondiscernable Differences: Empirical Research and the Jury-Size Cases, 73 Mich. L. Rev. 644 (1975); Hans Zeisel, The Diminution of the Federal Jury, 38 U. Chi. L. Rev. 710 (1971); see also Michael J. Saks, The Smaller the Jury, the Greater the Unpredictability, 79 Judicature 263 (March - April 1996).

10. The report shows that increasing jury size results in more consistent verdicts, more well considered verdicts and greater citizen participation in the jury process.

11. This recommendation also addresses the frustration of potential jurors who complain of reporting for service, waiting for days or weeks and never being called to serve.

12. The MSBA accordingly respectfully recommends and requests that this Court amend Rule 48 of the Rules of Civil Procedure as follows:

Rule 48. Juries Of Less Than Twelve; Majority Verdict

The parties may stipulate that the jury shall consist of any number less than 12, or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. If the parties do not stipulate as to the number of jurors, the court shall seat a jury of not fewer than six and not more than twelve members. All jurors shall participate in the verdict unless excused from service by the court for good cause. If the number of jurors falls below six, then the court shall declare a mistrial unless the parties have stipulated or do stipulate that the trial may proceed with fewer than six jurors, in which case the trial shall so proceed unless the court finds that manifest injustice will result.

All Alternates Remaining At The Close Of A

Civil Trial Should Deliberate And Vote

13. Allowing alternate jurors to deliberate at the close of trial is consistent with the encouragement of larger juries. The alternate is treated like every other juror and has heard the entire case. Allowing the alternates to deliberate would avoid the frustration of the juror who is discharged without participating in the deliberation process.

14. Rule 47.02 of the Rules of Civil Procedure currently provides that the alternates be discharged once the jurors retire to deliberate.

15. The MSBA respectfully recommends and requests that this Court strike Rule 47.02 in its entirety and amend Rule 48 as follows:

Rule 48: Jurors Of Less Than Twelve; Majority Verdict

. . . All jurors shall participate in the verdict unless excused from service by the court for good cause.

Jurors Should Be Permitted To Question Witnesses

During Trial With Appropriate Procedural Safeguards

16. Juror studies verify that questions by jurors are an important device for jury deliberation and participation. Permitting questions gives jurors a greater sense of participation, avoids confusion, and allows jurors to pursue relevant information not solicited by lawyers. In addition, jurors are more alert and focused on the issues. See Judge Michael Dann, Learning Lessons and Speaking Rights: Creating Educated and Democratic Jurors, 68 Ind. L. J. 1229 (1993); see also Larry Heuer & Steven Penrod, Increasing Juror Participation in Trials Through Note Taking and Question Asking, 79 Judicature 256 (March - April, 1996).

17. This proposal would allow jurors to submit written questions to the court. The court would then have the opportunity to review the questions to determine their propriety before directing them to counsel and the witnesses.

18. This proposal was drafted by drawing from the present Civil Trialbook section on questioning by the judge (Section 10(j)) and the present section on questions by jurors during deliberations (Section 16).

19. The MSBA respectfully requests that this Court insert in the Civil Trialbook a new Section 10(j) and that the following subsections be renumbered accordingly:

Section 10. Examination Of Witnesses

(j) Questioning by Jury. A juror may submit a question for a witness through the judge. The juror shall submit the question in writing through appropriate court personnel. Upon receipt of such a written question, the court shall review the propriety of the question with counsel, on the record outside the presence of the jury. The court shall then ask the question, in which case all parties shall have the opportunity to examine the matters touched upon by the question; or shall tell the jury that the law prevented the question from being asked.

The Judge Should Read The Substantive Instructions

To The Jury Before Closing Arguments

20. Studies have demonstrated that jurors' comprehension of the applicable legal standards is raised if they are instructed on the substantive law prior to closing arguments. See ABA Litigation Report, Jury Comprehension in Complex Cases (1989).

21. The Rules of Civil Procedure already allow this practice. However, the MSBA proposes an amendment to the rule to make this practice mandatory instead of discretionary. The current rule provides: "The court shall instruct the jury before or after closing arguments of counsel except, in the discretion of the court, preliminary instructions need not be repeated." See Minn. R. Civ. P. 51 (1996).

22. The MSBA respectfully recommends and requests this Court amend Rule 51 of the Rules of Civil Procedure as follows:

Rule 51: Instructions To The Jury; Objections

. . . The court shall instruct the jury as to the substantive law before or after closing arguments of counsel except, in the discretion of the court, preliminary instructions need not be repeated. The court shall instruct the jury after closing arguments of counsel as to the procedure for the jury's deliberations and may then repeat some or all of the preliminary instructions given under Rule 39.03. The closing instructions may also repeat some or all of the instructions as to the substantive law.

Civil Juries Should Be Provided With

Written Copies Of All Instructions

23. The American Bar Association conducted a study of the practice of giving jurors written instructions and concluded that written instructions increase jurors' understanding of the instructions. In addition, written instructions facilitate deliberations, reduce the number of questions about the instructions during deliberations, and increase the confidence of jurors in their verdict. See ABA Litigation Report, Jury Comprehension in Complex Cases (1989).

24. This recommendation affects the present rule that "[t]he instructions may be in writing and, in the discretion of the court, one complete copy may be taken to the jury room when the jury retires to deliberate." Minn. R. Civ. P. 51. The MSBA recommends that the rule be amended to require each juror be given a copy of the instructions.

25. The MSBA respectfully requests that Rule 51 be amended as follows:

Rule 51: Instructions To The Jury; Objections

. . . The instructions may shall be in writing and, in the discretion of the court, one complete copy may be taken each juror shall be given a copy that the juror may take to the jury room when the jury retires to deliberate.

WHEREFORE, Petitioner MSBA respectfully petitions this Honorable Court to:

1. Strike Rule 47.02 of the Minnesota Rules of Civil Procedure and amend Rule 48 as set forth in paragraphs 12 and 15 above.

2. Adopt Section 10(j) to the Minnesota Civil Trialbook as set forth in paragraph 19 above.

3. Amend Rule 51 of the Minnesota Rules of Civil Procedure as set forth in paragraphs 22 and 25 above.

Dated: November 22, 1996

Respectfully submitted,

MINNESOTA STATE BAR ASSOCIATION

By ________________________________

John N. Nys

Its President

MASLON EDELMAN BORMAN & BRAND

A Professional Limited Liability Partnership

By _________________________________

Laurie A. Kindel (#243929)

3300 Norwest Center

90 South Seventh Street

Minneapolis, Minnesota 55402-4140

(612) 672-8200

ATTORNEY FOR PETITIONER

94757

APPENDIX B

Amendments to Minnesota Rules of Civil Procedure

Rule 48. Juries Of Less Than Twelve; Majority Verdict

The parties may stipulate that the jury shall consist of any number less than 12, or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. If the parties do not stipulate as to the number of jurors, the court shall seat a jury of not fewer than six and not more than twelve members. All jurors shall participate in the verdict unless excused from service by the court for good cause. If the number of jurors falls below six, then the court shall declare a mistrial unless the parties have stipulated or do stipulate that the trial may proceed with fewer than six jurors, in which case the trial shall so proceed unless the court finds that manifest injustice will result. . . . All jurors shall participate in the verdict unless excused from service by the court for good cause.

Rule 51: Instructions To The Jury; Objections

. . . The court shall instruct the jury as to the substantive law before or after closing arguments of counsel except, in the discretion of the court, preliminary instructions need not be repeated. The court shall instruct the jury after closing arguments of counsel as to the procedure for the jury's deliberations and may then repeat some or all of the preliminary instructions given under Rule 39.03. The closing instructions may also repeat some or all of the instructions as to the substantive law.

Rule 51: Instructions To The Jury; Objections

. . . The instructions may shall be in writing and, in the discretion of the court, one complete copy may be taken each juror shall be given a copy that the juror may take to the jury room when the jury retires to deliberate.

Amendment to Minnesota Civil Trialbook

Section 10. Examination Of Witnesses

(j) Questioning by Jury. A juror may submit a question for a witness through the judge. The juror shall submit the question in writing through appropriate court personnel. Upon receipt of such a written question, the court shall review the propriety of the question with counsel, on the record outside the presence of the jury. The court shall then ask the question, in which case all parties shall have the opportunity to examine the matters touched upon by the question; or shall tell the jury that the law prevented the question from being asked.