“Let it all hang out. You – conceal it!”
I’m reminded of this every time I prepare my client for a deposition, or help them with interrogatories, or whatever. Of course, I grew up on the Simpsons and am constantly reminded of them to the point where the show is just part of my subconscious. Anyway, this comes from a second season episode where Homer’s new assistant, Karl takes Homer to the tailor for some new suits. Homer does what guys do and sucks in his gut. Karl yells at him to let it all hang out, and then points at the tailor and says “you – conceal it!”
That’s what we want our clients to do. We need to know the warts in the case – the 30 pounds of excess flab hanging over the belt, so we can dress it up nice and make it look presentable. If a client is complaining of low back pain, we need to know if he had low back pain ever – or had been to a chiro – or whatever. If the client was a convicted felon, we want to know. None of this stuff is the end of the world if we know about it in time and can handle it.
The worst thing a client can do is hide stuff from us out of fear that it will hurt their case. We’re pros. We can dress up Homer Simpson in nice clothes and pass him off as an executive – but only if he doesn’t suck it in.
*hat tip to Dead Homer Society for the yoinked image above*
(Howard Zimmerle is a personal injury and car accident attorney in Rock Island Illinois, practicing in the entire Quad Cities and surrounding area. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)
Big news today – the Illinois Supreme Court adopted Rule 243, which allows jurors in civil cases to ask questions in certain circumstances. The rule reads as follows:
New Rule 243
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit
to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court
shall determine whether the jury will be afforded the opportunity to question the
witness. Regarding each witness for whom the court determines questions by jurors
are appropriate, the jury shall be asked to submit any question they have for the
witness in writing. No discussion regarding the questions shall be allowed between
jurors at this time; neither shall jurors be limited to posing a single question nor shall
jurors be required to submit questions. The bailiff will then collect any questions and
present the questions to the judge. Questions will be marked as exhibits and made a
part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question
to all counsel, allow counsel to see the written question, and give counsel an
opportunity to object to the question. If any objections are made, the court will rule
upon them at that time and the question will be either admitted, modified, or
(d) Questioning of the Witness. The court shall instruct the witness to answer
only the question presented, and not exceed the scope of the question. The court will
ask each question; the court will then provide all counsel with an opportunity to ask
follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems
appropriate, the court shall advise the jurors that they shall not concern themselves
with the reason for the exclusion or modification of any question submitted and that
such measures are taken by the court in accordance with the rules of evidence that
govern the case.
The rule can also be found here.
So what does it all mean, practically speaking? A few thoughts:
- Judges do not have to let jurors ask questions. I suspect many older judges won’t do this at all. I’ve spoken to some local judges who are excited about this possibility.
- There is room to object and/or edit the question away from the jury. This is important, as I sure don’t want to object to a juror’s question in front of them.
- No discussion between the jurors. This is good too – it prevents preliminary deliberation.
- This does not need to happen for every witness. Hopefully this doesn’t slow down trials too much, although in a way it reminds me of letting fans suggest pitches to a pitcher – slowing down an already molasses-slow process.
- I’m a little scared of this. I like control. I usually know what the defense lawyers are going to ask, and they probably know what I’m going to ask.
- I also like the idea that jurors might feel more involved and more “into” a trial. This is a much better option than having jurors who are asleep by 1pm the first day of trial (or even in closing arguments… I had a juror sleep through my closing arguments once, and guess what… she became the foreperson, and I lost. GRRR…)
What do others think?
A recent article in the Illinois Bar Journal notes that other states and federal courts have tried it, and that the reaction of juries, judges and even attorneys has been largely positive.An example of this would be a pilot program in New Jersey, with similar results.
Will it change case outcomes? We’ll see. This may be the biggest change in trial practice since I became a lawyer – or it might be nothing.
(Howard Zimmerle is a plaintiff’s personal injury lawyer practicing in Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)