Michigan's Supreme Court makes changes in trial procedure

The Michigan Supreme Court has published new court rules intended to change some aspects of civil jury trials.   Within the judge's discretion, all jurors will now be allowed to take notes and submit questions for the judge to ask witnesses.  The judge may also allow jurors to discuss the evidence during breaks prior to retiring to deliberate.  The judge will be required to give the jurors a written copy of their instructions and may allow attorneys to give the jury a "reference book" containing copies of pertinent statutes, contracts, exhibits and other related information.  These rule changes were not particularly controversial.

Controversy was significant, however, with those aspects of the Rule changes that would allow judges to "require attorneys to prepare a 'concise, written summary of a witnesses' deposition' " a seemingly absurd request to make of adversaries who obviously won't be inclined to agree on the salient points of a witnesses' testimony and who are likely to interpret most witnesses' testimony differently.  In moderating this dispute between the attorneys, the judge will essentially become the fact-finder by implicitly assessing a witnesses' meaning or credibility.

The new rules would also allow judges greater control in scheduling expert witnesses--and perhaps to interfere with the scheduling order deemed most persuasive by the attorney presenting the expert's testimony.    It would also allow the judge to "fairly and impartially sum up the evidence;" a task that will prove absolutely impossible for some judges and be fertile ground for appeals.   

Under current procedures, if a litigant presents evidence in a manner that is less than probative, the litigant has no one but its own attorney to blame:  with the new rules, every losing litigant will be convinced that the outcome of the trial was determined by a biased or confused judge's interference with the fair presentation of the loser's proofs.  And some are bound to be correct.