Mediation Message No. 64


Since the Expedited Jury Trial Act (Act; Code of Civil Procedure §§ 630.01 – 630.10) goes into effect on January 1, 2011, and the Judicial Council has recently created enabling procedures (Rules 3.1545 et seq.) which may have been underpublicized, I thought it would be helpful to summarize some of the Act’s provisions for those who may want to risk the uncertainty of trial, albeit now in a truncated form:

• Assignment of judges is at the discretion of the presiding judge and precludes temporary judges requested by the parties. (Rule 3.1546.)

• A consent order consisting of a waiver of right to appeal and post-trial jury motions (e.g., directed verdict; set aside the verdict; inadequate or excessive damages) shall be submitted by the parties to the court at least 30 days before the scheduled trial date. (CCP § 630.08; Rule 3.1547(a)(1).) The order, which shall be signed by all parties and their counsel, includes representations that the parties and their insurers have been informed of the applicable rules and procedures. (CCP § 630.03(a),(e).) Rule 3.1546(b) provides for optional contents of the consent order.

The consent order is binding on the parties absent a later stipulation of all of the parties or a court order that good cause exists for the action not to proceed as an expedited jury trial. (CCP § 630.03(b),(f).)

• Modifications of the Act’s provisions are permitted if agreed to by all parties and the court. (CCP § 630.02(a); Rule 3.1547(b).) The only provisions of the Act that are mandatory, and cannot be modified by agreement of the parties, are waiver of both the right to appeal and certain post-trial motions; a smaller jury; fewer peremptory challenges and three hours per side for the presentation of the case. (Rule 3.1547(b).)

• Exchange 25 days before trial witness lists, exhibits (excluding witnesses and exhibits for impeachment or rebuttal), copies of recorded materials, lists of depositions, motions in limine, proposed instructions, proposed jury verdict forms and juror questionnaires. (Rule 3.1548(b).) Failure to serve the exhibits in advance is grounds for their preclusion at trial unless good cause can be shown for the failure. (Rule 3.1548(e).)

• Motions in limine shall be filed 20 days before trial. (Rule 3.1548(d).)

• A pretrial conference will be held 15 days before trial. (Rule 3.1548(f).) Matters to be addressed include objections to previously submitted documentary, jury questionnaires, jury instructions, special verdict forms and the allocation of time for each party’s case.

• High/low agreements governing damages, which are not disclosed to the jury, are permitted but not required. (CCP § 630.01(b); Rule 3.1547(a)(2).)

• Voir dire is limited to one hour, with 15 minutes for the judicial officer and 15 minutes for each side. (Rule 3.1549.) Each side has three peremptory challenges, with the possibility that one additional challenge may be granted to each side in multiparty cases. (CCP § 630.04(b).)

• The jury is composed of eight persons, unless the parties agree to fewer jurors. There are no alternates. (CCP § 630.04(a).)

• Presentation of the case is limited to three hours per side, including opening statement, cross-examination and closing argument, unless the court finds good cause for additional time. (Rule of Court 3.1550.) The use of stipulations and evidentiary summaries are encouraged. (Rules 3.1551(a), (c); 3.1552(a).)

• Traditional rules of evidence apply unless the parties stipulate otherwise. (CCP § 630.06(a).) Privileges affecting confidentiality cannot be limited by stipulations. (CCP § 630.06(b).)

• The jury verdict is binding, subject to any written high/low agreement or other stipulations between the parties. (CCP § 630.07(a).) A vote of six of the eight jurors is required, unless the parties stipulate otherwise. (CCP § 630.07(b).) A jury may deliberate as long as needed. (CCP § 630.05.)

• Post-trial motions and appeals are limited to those to correct a judgment for clerical error, to enforce a judgment and for costs and attorney’s fees (CCP § 630.09(c)) or for a new trial because of alleged misconduct of the judicial officer or jury or corruption , fraud or other undue means employed in the proceedings. (CCP § 630.09.)

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Landline (310) 201-0010
Cell (310) 433-4155

Copyright Michael D. Marcus, November 2010

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