Should Attorneys Let Jurors Question Expert Witnesses?

Christine Funk

Written by
— Updated on December 8, 2021

Should Attorneys Let Jurors Question Expert Witnesses?

In some jurisdictions, the attorneys do not have a choice about whether or not to allow jurors to ask questions of expert witnesses.  In other jurisdictions, it is permissible but judges are not required to allow it.  States that allow jurors to ask questions under certain circumstances include:

  1. Arizona
  2. Arkansas
  3. Florida
  4. Georgia
  5. Indiana
  6. Iowa
  7. Kentucky
  8. Michigan
  9. Nevada
  10. North Carolina
  11. Pennsylvania
  12. Texas

In states where questioning is allowed, practitioners find both advantages and disadvantages to the practice.

Advantages

You Learn What They Heard (Which May Not Be What Was Said)

You can practice questions and answers with your expert until you are blue in the face, but if the jury doesn’t understand what a likelihood ratio is, or how a product design failure led to an injury, they aren’t going to be able to use the information when evaluating the strengths and weaknesses of the case before them.

When jurors are allowed to ask questions, this provides a “real time” peek into what they are thinking.  Juror questions highlight areas where your expert’s explanation wasn’t as clear as you thought.  They also allow you to address areas you hadn’t previously considered relevant.  Finally, juror questions can provide you with an opportunity to clean up a mess you didn’t know you had created.

Letting jurors ask questions can also provide insight as to how they may view your case.  It would be  a bad idea to use a single question as a benchmark for how the jurors view the trial.  However, if all the questions seem to be around how your client was at fault, or how your expert doesn’t, in their opinion, have the requisite experience to formulate a relevant opinion, this may inform you about whether to take a last minute offer, to attempt to negotiate a settlement, or at the very least, bargain for a high / low agreement.

You Have A “Do Over”

If you hear what the jurors are thinking, this not only gives you the chance to clean it up.  Assuming you know your material, you can ask your witness to address the jurors’ concerns.  Next, you can ask your witness to explain why their concern is misplaced or irrelevant, and how it should be reconsidered.

Listening to the questions of the jurors also gives you the chance to formulate your closing argument on what you understood them to see as the relevant issues.

Jurors Are More Invested

When you think about it, jury trials are a bit silly.  6 or 12 people are expected to sit in a box for a few hours to many weeks, listening and taking notes, and then are asked to answer a question that goes to the ultimate issue.  Who knows how many burning questions may have occurred to them over the course of the trial?  When jurors know they will be left to their own devices to try and figure things out, and cannot have their questions answered, there is a risk they will disengage and stop listening entirely.

In many cases, expert testimony is fraught with concepts unfamiliar to the average juror.  By knowing they can ask questions, jurors tend to listen more actively.  If they don’t understand something, they have the opportunity to clarify the issue, rather than be forced to rely on someone else’s interpretation of the testimony in the jury room.

Disadvantages

It Takes More Time

Of course, giving the jury a chance to ask questions necessarily takes more time.  Jurors have to formulate their questions.  Next, judges and attorneys have to review the questions.  When there is an objection the attorneys argue for their position.  The judge must rule on the arguments, which may require some research.  Next, the questions have to be asked and answered.  Finally, the attorneys are typically allowed to ask follow up questions.

Additionally, depending on the format, one risks the possibility one juror will hijack the process.   Everyone remembers that one guy from college who could start with a simple question that somehow inevitably turned into a soliloquy.  The key to this is limiting the format to written questions, rather than allowing the jurors to just start speaking directly to the expert.

It May Create More Appealable Issues

Of course, any time a judge decides to allow an expert to answer, this may create an appealable issue.  One might appeal the appropriateness of the question.  Alternatively, one might appeal the content of the answer.  On the other hand, the judge may determine the expert may not answer a given question.  This creates yet another possible issue on appeal.  No jury questions equals no jury question appeal issues (unless, of course, you are in a state where the jury is allowed to ask questions, and the court improperly denies the request).  There may be no way to win this one.

They May Ask About Something Previously Ruled Inadmissible

Another illustration of why it is a better idea to have the jurors write questions down, rather than allowing them to blurt out questions from the jury box is that, inevitably, someone is going to have a question about something that has previously been ruled inadmissible, or simply isn’t allowed under the rules of evidence.

When the judge and attorneys can review the questions ahead of time, they can remove inadmissible questions from the list of questions that will eventually be put to the expert.  The judge and the attorneys should work on a carefully worded statement for the jury ahead of time.  This statement should caution the jurors that while they are free to ask anything they want, there are certain rules and statutes in place.  These rules and statutes may make their question inappropriate.  Jurors should be told the judge (not the lawyers) will decide whether or not the question should be put to the expert.

In the End. . .

In the end, of course, each state decides whether they think allowing jurors to ask questions should be mandatory or permissive in criminal and civil trials.  Where it is permissive, the judge ultimately makes the call.  However, lawyers should strongly consider at least advocating for a neutral format for submitting the questions to the expert.

By having an orderly format, the lawyers and judge retain more control.  The judge and attorney review of the questions ahead of time.  The judge asks the questions.  The expert answers the questions.  However, the juror does not become an advocate for one side or another.  Allowing jurors to ask questions, in principle, does not favor one side or the other.  It can be a burden or a boon, depending on the case at hand and the questions a juror asks.   It can also be a rich source of feedback for the litigator.

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