Trial Court Time Limits on Case Presentation
Virginia trial court judges have occasionally considered dividing the available trial time equally between the plaintiff and the defendant. For example, in a four-day trial, if two hours are used for jury selection, and the remaining estimated trial time totals 22 hours (6 hours of actual trial time on each of three days, plus 4 hours of trial time remaining on the first day), the trial court (or counsel for a party) might propose that each side would be allowed a total of 11 hours (660 minutes) for opening statement, direct examination, cross-examination, voir dire of opposing experts, argument on motions and jury instructions, and closing argument. Is this practice authorized? Is it fair and just?
Plaintiff’s counsel should consider objecting to any such approach when it is first proposed and should be prepared to explain to the trial court the problems that are involved. Although this type of equal division may superficially appear to be fair, the reality is that it usually is not. Trial judges understandably have a need to insure that trials are conducted in an efficient manner. But they also have a responsibility to allow each side a just and fair opportunity to present its case. If, under the circumstances of a particular case, the plaintiff’s case will require more time to present than the defendant’s case, a 50-50 division of the trial time will be “equal” but it will nevertheless be unjust and unfair.
Trial judges need to be reminded that a time allocation system that automatically grants each side half of the estimated trial time is arbitrary and unjust. Although this type of equal division may superficially appear to be fair, the reality is that it usually is not. A study done by the National Center for State Courts (“NCSC”) has shown that a plaintiff’s case typically requires substantially more time than the defense case. See “The Trouble With Time Limits,” 106 Geo. L.J. 933, 973 (2018) (emphasis added). The cited law review article summarized the results of the study as follows: “[D]o plaintiffs really need more time than defendants? The answer, supplied by the NCSC, is a resounding yes.” “The NCSC found that, across case categories, the plaintiff’s presentation of evidence took far longer than the defendant’s presentation. In fact . . . the plaintiff’s presentation often took twice as long, and sometimes it took more than three times as long.” Id. (emphasis added).
The fact that the plaintiff’s case usually takes longer to present than the defendant’s case and the reasons for that reality are both apparent. The plaintiff has the burden to present evidence to prove each aspect of each element of her claim. In many cases, the defense does not have the burden of proof on any issue in the case. Furthermore, in her case the plaintiff has to spend a considerable amount of time presenting evidence about matters that the defendant does not intend to dispute or challenge in any substantial way. This evidence “sets the table” for both the plaintiff and the defendant. It is thus unfair to “charge” to the plaintiff all of the time required to put on this background evidence. Furthermore, even on issues and evidence which the defendant plans to contest, the plaintiff may well need to spend more time than the defense providing the detailed factual background relevant to the pertinent issues. In many (perhaps most) cases, the defense will call far fewer witnesses than the plaintiff and instead the defense case will concentrate on targeted cross-examination of the plaintiff’s witnesses. For these and other reasons, an equal split of trial time between the plaintiff and the defendant is unwarranted and unjust unless there are case-specific considerations that justify that division.
Furthermore, even if the trial court had originally established expected time limits based upon case-specific considerations, any ruling rigidly refusing to allow a party any more time (e.g., “plaintiff’s time is up, nothing further allowed”) cannot properly be based purely upon the expiration of the amount of time originally allocated. The Virginia Court of Appeals has held, for example, that application of a time limitation in a manner that, in effect, denies a party the opportunity to conduct cross-examination is reversible error: [W]e recognize that the trial court may appropriately limit cross-examination, subject to the rules of evidence. For example, a trial court may, in its discretion, refuse to allow questions that seek information lacking relevance to any issue before the court, questions that seek to elicit cumulative evidence, or questions that have already been asked and answered. Here, however, the trial court entirely prohibited husband’s cross-examination of two of wife’s material witnesses due solely to the depletion of his allocated time at trial. These witnesses testified “on a matter relevant to the litigation,” specifically the validity of the marital agreement. In fact, whether husband had signed the agreement was the single most relevant fact in deciding whether the agreement was authentic. And because an opportunity to cross-examine is a fundamental right, we hold that the trial court abused its discretion by its arbitrary refusal to allow any cross-examination whatsoever. Error of this magnitude is never harmless.
Campbell v. Campbell, 49 Va. App. 498, 504-05, 642 S.E.2d 769, 773 (2007) (emphasis added).
Certainly, a trial court judge “has broad discretion in conducting a trial[.]” Justus v. Commonwealth, 222 Va. 667, 677, 283 S.E.2d 905, 910 (1981). Any exercise of discretion, however, must comport with controlling legal standards. A trial court abuses its discretion “when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones are considered, but the court, in weighing those factors, commits a clear error of judgment.” Galiotos v. Galiotos, 300 Va. 1, 11, 858 S.E.2d 653 (2021) (quoting Landrum v. Chippenham and Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134 (2011)).
The Virginia Constitution, the Virginia Code, and the Rules of Supreme Court of Virginia all guarantee every litigant the right to a jury trial. See Va. Const. art. I, § 11; Va. Code § 8.01-336; Va. Sup. Ct. R. 3:21. At the jury trial, “a litigant is entitled to introduce all competent, material, and relevant evidence that tends to prove or disprove any material issue in the case, unless that evidence violates a specific rule of admissibility,” and that, “[e]very fact that tends to establish the probability or improbability of a fact at issue is relevant.” Barkley v. Wallace, 267 Va. 369, 595 S.E.2d 271, 273 (2004) (emphasis added) (citing Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 458 S.E.2d 462, 465 (1995) and other cases).
Therefore, any time limits imposed by the Court must be reasonable under all the circumstances and must be based upon the consideration of all pertinent factors and circumstances. Limiting a party’s presentation of further evidence, cross-examination, or argument solely on the basis of the number of ticks on a clock would be an abuse of discretion since it would not be based upon an evaluation of all the pertinent factors and circumstances.
Like the Virginia Court of Appeals, numerous courts of other states have held that a trial court must not impose time limitations in a manner that fails to take account of all the pertinent circumstances and factors. See Barksdale v. Bert’s Marketplace, 289 Mich. App. 652, 657, 797 N.W.2d 700, 703 (2010) (“[B]y imposing an utterly arbitrary time limit for witness examinations, the trial court selected an outcome falling outside the range of principled outcomes.”); Rasmussen v. Rasmussen, No. 03-1206, 2004 Iowa App. LEXIS 693, at *6 (Ct. App. May 14,2004) (unpublished) (“Arbitrary and inflexible time limits are a serious threat to due process principles.
. . . Time limits must be applied with sufficient flexibility to ensure a fair trial.”); In re Marriage of Goellner, 770 P.2d 1387, 1389 (Colo. App. 1989) (“It is evident from the record that the trial court was adamant in allowing only six hours to each side to present that party’s case.
. . . The court allowed no flexibility in the time period allocated. This
constitutes prejudicial error[.]”); Ingram v. Ingram, 2005 Ok. Civ. App. 87, ¶¶ 21-22, 125 P.3d 694, 699 (2005) (“The trial record shows that Husband’s time expired while he was on the stand to testify at which time the trial court stopped further testimony depriving the trier of fact of potentially useful evidence in reaching an impartial decision.
. . . This Court holds that the trial court abused its discretion under the facts here and committed fundamental error. This holding necessitates a complete reversal and setting aside of the judgment below.”).
Factors that should properly guide the trial court’s discretion in this type of situation include those set forth in Rule 2:611 of the Rules of Supreme Court of Virginia: “The mode and order of interrogating witnesses and presenting evidence may be determined by the court so as to (1) facilitate the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Va. Sup. Ct. R. 2:611(a). The mere fact that a party has used a particular amount or percentage of trial time does not, by itself, establish that there is some just and fair reason for excluding additional evidence, cross examination, or argument that is necessary.
Sometimes, for example, the time required for earlier portions of that party’s case may have taken longer than expected for reasons that were entirely beyond the party’s control. A rigid application of a time limit would fail to consider pertinent factors. Were contemporaneous objections made to the length of any aspect of the previous portions of the party’s case? Were the party’s witnesses repetitive or cumulative? Were the party’s opening statement or cross-examinations repetitive or unduly time consuming? Did the opposing party create the need for the time-consuming presentation of extensive evidence regarding matters that eventually were essentially undisputed?
Counsel should make the trial court aware of the foregoing issues, arguments, and authorities at the first occasion when time limits are first proposed. It will be more difficult to object to the application of a 50-50 time limit if at the outset of the trial counsel had raised no concerns about or even readily agreed to that time limit. Counsel should also be aware that, in the event that a trial court rules that based upon the expiration of a time limit a party will not be allowed to present any further evidence, cross-examination, or argument, counsel should preserve the issue for appeal by stating objections to the ruling on the record.
Furthermore, counsel should make a sufficient proffer of the evidence, cross-examination, or argument which would have been presented but for the imposition of the time limit. This proffer must be made on the record while the trial judge and opposing counsel are present. See Galumbeck v. Lopez, 283 Va. 500, 508, 722 S.E.2d 551, 555 (2012) (issue was not preserved for appeal when the purported proffer “was recorded after court had adjourned for the day and outside of the presence of opposing counsel”). A proffer of that type is necessary so the trial court can evaluate and consider factors, circumstances and arguments relevant to its ruling, and so that an appellate court, if necessary, can evaluate the same matters as well as the extent of the prejudice caused by the exclusionary rulings. If the opposing party does not agree to a proffer, the proffer may itself take a significant amount of time (which would thus paradoxically lengthen the trial that the trial judge was attempting to shorten by its exclusionary ruling)
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