Rules for Summary Trials

In a summary bench trial, evidence is presented in a summary fashion to a presiding officer, who shall render a verdict. In a summary jury trial, evidence is presented in summary fashion to a privately procured jury, which shall render a verdict. The goal of a summary trial is to obtain an accurate prediction of the ultimate verdict of a full civil trial as an aid to the parties and their settlement efforts. Rule 23 of the General Rules of Practice for the Superior and District Courts also provides for summary jury proceedings. While parties may request the court’s permission to utilize that process, it may not be substituted in lieu of a mediated settlement conference or other procedures outlined in these rules. 41 TOC Rule 13 (a) Pre-summary Trial Conference. Prior to the summary trial, counsel for the parties shall attend a pre-summary trial conference with the presiding officer selected by the parties under Rule 10(c)(10). The presiding officer shall issue an order that does the following: (1) Confirms the completion of discovery or sets a date for the completion. (2) Orders that all statements made by counsel in the summary trial shall be founded on admissible evidence, either documented by deposition or other discovery previously filed and served, or by affidavits of the witnesses. (3) (4) Schedules all outstanding motions for hearing. Sets dates by which the parties exchange: a. b. c. d. a list of the party’s respective issues and contentions for trial; a preview of the party’s presentation, including notations as to the document (e.g., deposition, affidavit, letter, or contract) that supports that evidentiary statement; all documents or other evidence that the party will rely on in making its presentation; and all exhibits that the party will present at the summary trial. Sets the date by which the parties shall enter a stipulation, subject to the presiding officer’s approval, detailing the time allowable for jury selection, opening statements, the presentation of evidence, and closing arguments (total time is usually limited to one day). Establishes a procedure by which private, paid jurors will be located and assembled by the parties, if a summary jury trial is to be held, and set the date by which the parties shall submit agreed upon jury instructions, jury selection questionnaire, and the number of potential jurors to be questioned and seated. Sets a date for the summary jury trial. Addresses such other matters as are necessary to place the matter in a posture for summary trial. (5) (6) (7) (8) (b) Presiding Officer to Issue Order if Parties Unable to Agree. If the parties are unable to agree upon the dates and procedures set out in subsection (a) of this rule, then the presiding officer shall issue an order which addresses all matters necessary to place the case in a posture for summary trial. 42 TOC Rule 13 (c) Stipulation to a Binding Summary Trial. At any time prior to the rendering of the verdict, the parties may stipulate that the summary trial will be binding on the parties and that the verdict will become a final judgment. The parties may also make a binding high/low agreement, wherein a verdict below a stipulated floor or above a stipulated ceiling would be rejected in favor of the floor or ceiling. (d) Evidentiary Motions. Counsel shall exchange and file motions in limine and other evidentiary matters, which shall be heard prior to the trial. Counsel shall agree, prior to the hearing of the motions, as to whether the presiding officer’s rulings will be binding in all subsequent hearings or nonbinding and limited to the summary trial. (e) Jury Selection. In the case of a summary jury trial, potential jurors shall be selected in accordance with the procedure set out in the pre-summary trial order. These jurors shall complete a questionnaire previously stipulated to by the parties. Eighteen jurors, or a lesser number as the parties agree, shall submit to questioning by the presiding officer and each party for such time as is allowed under the summary trial pretrial order. Each party shall then have three peremptory challenges, to be taken alternately, beginning with the plaintiff. Following the exercise of all peremptory challenges, the first twelve seated jurors, or a lesser number as the parties may agree, shall constitute the panel. After the jury is seated, the presiding officer, in his or her discretion, may describe the issues and procedures to be used in presenting the summary jury trial. The jury shall not be informed of the nonbinding nature of the proceeding, so as not to diminish the seriousness with which they consider the matter and in the event the parties later stipulate to a binding proceeding. (f) Presentation of Evidence and Arguments of Counsel. Each party may make a brief opening statement. Following the opening statements, each side shall present its case within the time limits set in the summary trial pretrial order and may reserve a portion of its time for presenting rebuttal or surrebuttal evidence. Although closing arguments are generally omitted from a summary trial, subject to the presiding officer’s discretion and the parties’ agreement, each party may be allowed to make closing arguments within the time limits previously established. Evidence shall be presented in summary fashion by the attorney for each party, without live testimony. Where the credibility of a witness is important in the dispute, the witness may testify in person or by video deposition. All statements of counsel shall be founded on evidence that would be admissible at trial and documented by prior discovery. Affidavits offered into evidence shall be served upon opposing parties far enough in advance of the proceeding to allow time for affiants to be deposed. Counsel may read portions of the deposition to the jury. Photographs, exhibits, documentary evidence, and accurate summaries of evidence through charts, diagrams, evidence notebooks, or other visual means are encouraged, but shall be stipulated to by the parties or approved by the presiding officer. 43 TOC Rule 13 (g) Jury Charge. In a summary jury trial, following the presentation of evidence by both parties, the presiding officer shall give a brief charge to the jury, relying on predetermined jury instructions and any additional instructions that the presiding officer deems appropriate. (h) Deliberation and Verdict. In a summary jury trial, the presiding officer shall inform the jurors that they should attempt to return a unanimous verdict. The jury shall be given a verdict form stipulated to by the parties or approved by the presiding officer. The form may include specific interrogatories, a general liability inquiry, and/or an inquiry as to damages. If, after diligent efforts and a reasonable time to deliberate, the jury is unable to reach a unanimous verdict, then the presiding officer may recall the jurors and encourage them to reach a verdict quickly or inform them that they may return separate verdicts, in which case the presiding officer may distribute separate verdict forms. In a summary bench trial, at the close of the presentation of evidence and arguments of counsel, and after allowing time for settlement discussions and consideration of the evidence by the presiding officer, the presiding officer shall render a decision. Upon a party’s request, the presiding officer may allow three business days for the filing of post-hearing briefs. If the presiding officer takes the matter under advisement or allows post-hearing briefs, then the decision shall be rendered no later than ten days after the close of the hearing or filing of briefs, whichever is later. (i) Jury Questioning. In a summary jury trial, the presiding officer may allow a brief conference with the jurors in open court after a verdict has been returned, in order to determine the basis of the jury’s verdict. However, if a brief conference is utilized, then it should be limited to general impressions. The presiding officer should not allow counsel to ask detailed questions of jurors to prevent altering the summary trial from a settlement technique to a form of pretrial rehearsal. Jurors shall not be required to submit to counsels’ questioning and shall be informed of the option to depart. (j) Settlement Discussions. Upon retirement of the jury in a summary jury trial or the presiding officer in a summary bench trial, the parties and/or their counsel shall meet for settlement discussions. Following the jury’s verdict or decision by the court, the parties and/or their counsel shall meet to explore further settlement possibilities. The parties may request that the presiding officer remain available to provide input or guidance, as the presiding officer deems appropriate. (k) Modification of Procedure. Subject to approval of the presiding officer, the parties may agree to modify the procedures set forth in these rules for summary trial. (l) Report of Presiding Officer. The presiding officer shall file a written report no later than ten days after the verdict. The report shall be signed by the presiding officer and filed with the clerk of superior court in the county where the action is pending, with a copy of the report provided to the senior resident superior 44 TOC Rule 13 court judge. The presiding officer’s report shall inform the court of the absence of any party, attorney, or representative of an insurance carrier known to the presiding officer to have been absent from the summary jury or summary bench trial without permission. The report may be used to record the verdict. In the event that an agreement was reached upon all issues in the dispute, the report shall also inform the court of the agreement and state the name of the person designated to file the consent judgment or voluntary dismissal. Local rules shall not require the presiding officer to send a copy of any agreement reached by the parties to the court. History Note. 373 N.C. 663.