PROP. AMEND. OF RULES 2.512, 475 Mich. 1223 (2006)

PROPOSED AMENDMENT OF RULES 2.512, 2.513, 2.514, 2.515, 2.516, AND 6.414 OF THE MICHIGAN COURT RULES.

Supreme Court of Michigan.
July 11, 2006.

Order Entered.

On order of the Court, this is to advise that the Court is considering amendments of Rules 2.512, 2.513, 2.514, 2.515, 2.516, and 6.414 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.

Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.

[The present language would be amended as indicated below:]

RULE 2.512. INSTRUCTIONS TO JURY RENDERING VERDICT.
(A) Majority Verdict; Stipulations Regarding Number ofJurors and Verdict. The parties may stipulate in writing or onthe record that
(1) the jury will consist of any number legs than 6,

(2) a verdict or a finding of a stated majority of thejurors will be taken as the verdict or finding of the jury,or
(3) if more than six jurors were impaneled, all of thejurors may deliberate.
Except as provided in MCR 5.740(C), in the absence of suchstipulation, a verdict in a civil action tried by 6 jurors willbe received when 5 jurors agree.

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(B) Return, Toll.
(1) The jury must return its verdict in open court.
(2) A party may require a poll to be taken by the courtasking each juror if it is his or her verdict.
(3) If the number of jurors agreeing is less thanrequired, the jury must be sent out for further deliberation;otherwise the verdict is complete, and the court shall dischargethe jury.
(C) Discharge From Action; New Jury. The court maydischarge a jury from the action.
(1) because of an accident or calamity requiring it;
(2) by consent of all the parties;
(3) whenever an adjournment or mistrial is declared;
(4) whenever the jurors have deliberated until it appearsthat they cannot agree.
The court may order another jury to be drawn, and the sameproceedings may be had before the new jury as might have beenhad before the jury discharged.
(D) Responsibility of Officers.
(1) All court officers, including trial attorneys, mustattend during the trial of an action until the verdict of thejury is announced.
(2) A trial attorney may, on request, be released by thecourt from further attendance, or the attorney may designate anassociate or other attorney to act for him or her during thedeliberations of the jury.
(A) Request for Instructions.
(1) At a time the court reasonably directs, the partiesmust file written requests that the court instruct the jury onthe law as stated in the requests. In the absence of a directionfrom the court, a party may file a written request for juryinstructions at or before the close of the evidence.
(2) In addition to requests for instructions submittedunder subrule (A)(1). after the close of the evidence, eachparty shall submit in writing to the court a statement of theissues and may submit the party’s theory of the case regardingeach issue. The statement must he concise, be narrative in form,and set forth as issues only those disputed propositions of factthat are supported by the evidence. The theory may include thoseclaims supported by the evidence or admitted.
(3) A copy of the requested instructions must be served onthe adverse parties in accordance with MCR 2.107.
(4) The court shall inform the attorneys of its proposedaction on the requests before their arguments to the jury.
(5) The court need not give the statements of issues ortheories of the case in the form submitted if the court presentsto the jury the material substance of the issues and theories ofeach party.

(B) Instructing the Jury.

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(1) At any time during the trial, the court may, with orwithout request, instruct the jury on a point of law if theinstruction will materially aid the jury in understanding theproceedings and arriving at a just verdict.
(2) Before or after arguments or at both times, as thecourt elects, the court shall instruct the jury on theapplicable law, the issues presented by the case, and, if aparty requests as provided in subrule (A)(2), that party’stheory of the case.
(C) Objections. A party may assign as error the giving ofor the failure to give an instruction only if the party objectson the record before the jury retires to consider the verdict(or, in the case of instructions given after deliberations havebegun, before the jury resumes deliberations). statingspecifically the matter to which the party objects and thegrounds for the objection. Opportunity must be given to make theobjection out of the hearing of the jury.
(D) Model Civil Jury Instructions.
(1) The Committee on Model Civil Jury Instructionsappointed by the Supreme Court has the authority to adopt modelcivil jury instructions (M Civ JI) and to amend or repeal thoseinstructions approved by the predecessor committee. Beforeadopting, amending, or repealing an instruction, the committeeshall publish notice of the committee’s intent, together withthe text of the instruction to be adopted, or the amendment tobe made, or a reference to the instruction to be repealed, inthe manner provided in MCR 1.201. The notice shall specify thetime and manner for commenting on the proposal. The committeeshall thereafter publish notice of its final action on theproposed change, including, if appropriate, the effective dateof the adoption, amendment, or repeal. A model civil juryinstruction does not have the force and effect of a courtrule.

(2) Pertinent portions of the instructions approved by theCommittee on Model Civil Jury Instructions or its predecessorcommittee must be given in each action in which juryinstructions are given if
(a) they are applicable.
(b) they accurately state the applicable law, and
(c) they are requested by a party.
(3) Whenever the committee recommends that no instructionbe given on a particular matter, the court shall not give aninstruction unless it specifically finds for reasons stated onthe record that
(a) the instruction is necessary to state the applicablelaw accurately. and
(b) the matter is not adequately covered by other pertinentmodel civil jury instructions.
(4) This subrule does not limit the power of the court togive additional instructions on applicable law not covered bythe model instructions . Additional instructions, when given,must be patterned as nearly as practicable after the style ofthe model instructions and must be concise, understandable,conversational, unslanted. and nonargumentative.

RULE 2.513. CONDUCT OF JURY TRIAL VIEW

(A) Preliminary Instructions. After the jury is sworn andbefore

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evidence is taken, the court shall provide the jury withpretrial instructions reasonably likely to assist in itsconsideration of the case. Such instructions, at a minimum,shall communicate the duties of the jury-trial procedure, andthe law applicable to the case as are reasonably necessary toenable the jury to understand the proceedings and the evidence.The jury also shall be instructed about the elements of allcivil claims or all charged offenses, as well as the legalpresumptions and burdens of proof. The court shall provide eachjuror with a copy of such instructions. MCR 2.512(D)(2) does notapply to such preliminary instructions. By Jury Onmotion of either party or on its own initiative, the court mayorder an officer to take the jury as a whole to view property ora place where a material event occurred. During the view, noperson other than the officer designated by the court may speakto the jury concerning a subject connected with the trial. Thecourt may order the party requesting a jury view to pay theexpenses of the view.

(B) Court’s Responsibility. The trial court must controlthe proceedings during trial, limit the evidence and argumentsto relevant and proper matters, and take appropriate steps toensure that the jurors will not be exposed to information orinfluences that might affect their ability to render animpartial verdict on the evidence presented in court. The courtmay not communicate with the jury or any juror pertaining to thecase without notifying the parties and permitting them to bepresent. The court must ensure that all communicationspertaining to the case between the court and the jury or anyjuror are made a part of the record. By Court. Onapplication of either party or on its own initiative. the courtsitting as trier of fact without a jury may view property or aplace where a material event occurred.
(C) Opening Statements. Unless the parties and the courtagree otherwise, the plaintiff or the prosecutor, beforepresenting evidence-must make a full and fair statement of thecase and the facts the plaintiff or the prosecutor intends toprove. Immediately thereafter, or immediately before presentingevidence, the defendant may make a similar statement. The courtmay impose reasonable time limits on the opening statements.
(D) Interim Commentary. Each party may, in the court’sdiscretion. present interim commentary at appropriate juncturesof the trial.
(E) Reference Documents. The court must encourage counselin civil and criminal cases to provide the jurors with areference document or notebook, the contents of which shouldinclude, but which is not limited to. witness lists, relevantstatutory provisions, and, in cases where the interpretation ofa document is at issue, copies of the relevant document. Thecourt and the parties may supplement the reference documentduring trial with copies of the preliminary jury instructions,admitted exhibits, and other appropriate information to assistjurors in their deliberations.
(F) Deposition Summaries. Where it appears likely that thecontents of a deposition will be read to the jury, the courtshould encourage the parties to prepare concise, writtensummaries of depositions for reading at trial in lieu of thefull deposition. Where a

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summary is prepared, the opposing party shall have theopportunity to object to its contents. Copies of the summariesshould he provided to the jurors before they are read.
(G) Scheduling Expert Testimony. The court may, in itsdiscretion, craft a procedure for the presentation of all experttestimony to assist the jurors in performing their duties. Suchprocedures may include, but are not limited to:
(1) Scheduling the presentation of the parties’ expertwitnesses sequentially: or
(2) allowing the opposing experts to be present during theother’s testimony and to aid counsel in formulating questions tohe asked of the testifying expert on cross-examination: or
(3) providing for a panel discussion by ?]1 experts on asubject after or in lieu of testifying. The panel discussion,moderated by a neutral expert or the trial judge, would allowthe experts to question each other.
(H) Note Taking by Jurors. The court may permit the jurorsto take notes regarding the evidence presented in court. If thecourt permits note taking, if, must instruct the jurors thatthey need not take notes, and they should not permit, notetaking to interfere with their attentiveness. If the courtallows jurors to take notes, jurors must be allowed to refer totheir notes during deliberations, but the court must instructthe jurors to keep their notes confidential except as to otherjurors during deliberations. The court shall ensure that alljuror notes are collected and destroyed when the trial isconcluded.
(I) Juror Questions. The court may permit the jurors toask questions of witnesses. If the court permits jurors to askquestions, it must employ a procedure that ensures that suchquestions are addressed to the witnesses by the court itself,that inappropriate questions are not asked, and that the partieshave an opportunity outside the hearing of the jury to object tothe questions. The court shall inform the jurors of theprocedures to be followed for submitting questions towitnesses.
(J) Jury View. On motion of either party, on its owninitiative, or at the request of the jury, the court may order ajury view of property or of a place where a material eventoccurred. The parties are entitled to be present at the juryview. During the view, no person, other than an officerdesignated by the court, may speak to the jury concerning thesubject connected with the trial. Any such communication must berecorded in some fashion.
(K) Juror Discussion. After informing the jurors that theyare not to decide the case until they have heard all theevidence, instructions of law. and arguments of counsel, thecourt may instruct the jurors that they are permitted to discussthe evidence among themselves in the jury room during trialrecesses. The jurors should be instructed that such discussionsmay only take place when all jurors are present and that suchdiscussions must be clearly understood as tentative pendingfinal presentation of all evidence, instructions, andargument.
(L) Closing Arguments. After the close of all theevidence, the parties may make closing arguments. The plaintiffor the prosecutor is entitled to make the first closingargument. If the defendant makes an argument. the plaintiff orthe prosecutor may offer a rebuttal limited to the issues

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raised in the defendant’s argument. The court may imposereasonable time limits on the closing arguments.
(M) Comment on the Evidence. After the close of theevidence and arguments of counsel, the court may fairly andimpartially sum up the evidence and comment to the jury aboutthe weight of the evidence, if it also instructs the jury thatit is to determine for itself the weight of the evidence and thecredit to be given to the witnesses and that jurors are notbound by the court’s summation or comment. The court shall notcomment on the credibility of witnesses or state a conclusion onthe ultimate issue of fact before the jury.
(N) Final Instructions to the Jury.
(1) Before closing arguments, the court must give theparties a reasonable opportunity to submit written requests forjury instructions. Each party must serve a copy of the writtenrequests on all other parties. The court must inform the partiesof its proposed action on the requests before their closingarguments. After closing arguments are made or waived, the courtmust instruct the jury as required and appropriate, but at thediscretion of the court, and on notice to the parties, the courtmay instruct the jury before the parties make closing arguments.After jury deliberations begin, the court may give additionalinstructions that are appropriate.
(2) Solicit Questions about Final Instructions. As part ofthe final jury instructions, the court shall advise the jurythat it may submit in a sealed envelope given to the bailiff anywritten questions about the jury instructions that arise duringdeliberations. Upon concluding the final instructions, the courtshall invite the jurors to ask any questions in order to clarifythe instructions before they retire to deliberate.
If questions arise, the court and the parties shallconvene, in the courtroom or by other agreed-upon means. Thequestion shall be read into the record, and the attorneys shalloffer comments on an appropriate response. The court may, in itsdiscretion, provide the jury with a specific response to thejury’s question, but the court shall respond to all questionsasked, even if the response consists of a directive for the juryto continue its deliberations.
(3) Copies of Final Instructions. The court shall provideeach iuror with a written copy of the final jury instructions totake into the jury room for deliberation. The court, in itsdiscretion, also may provide the jury with a copy ofelectronically recorded instructions.
(4) Clarifying or Amplifying Final Instructions. Where itappears that a deliberating jury has reached an impasse, or isotherwise in need of assistance, the court may invite the jurorsto list the issues that divide or confuse them in the event thatthe judge can be of assistance in clarifying or amplifying thefinal instructions.
(O) Materials in the Jury Room. The court shall permit the jurors, on retiring to deliberate, to take into the jury room their notes and final instructions. The court may permit the jurors to take into the jury room the reference document, if one has been prepared, as well as any exhibits and writings admitted into evidence.

(P) Provide Testimony or Evidence. If. after beginningdeliberation, the jury requests a review of certain testimony orevidence that has not been

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allowed into the jury room under subrule (CO, the courtmust exercise its discretion to ensure fairness and to refuseunreasonable requests, but it may not refuse a reasonablerequest. The court may make a video or audio recording ofwitness testimony, or prepare an immediate transcript of suchtestimony, and such tape or transcript, or other testimony orevidence, may be made available to the jury for itsconsideration. The court may order the jury to deliberate furtherwithout the requested review, as long as the possibility ofhaving the testimony or evidence reviewed at a later time is notforeclosed.

RULE 2.514. RENDERING VERDICT SPECIALVERDICM
(A) Use of Special Verdicts; Form. The court may requirethe jury to return a special verdict in the form of a writtenfinding on each issue of fact, rather than a general verdict.If a special verdict is required, the court shall, in advance ofargument and in the absence of the jury, advise the attorneys ofthis fact and, on the record or in writing, settle the form ofthe verdict. The court may submit to the jury:
(1) written questions that may be answered categoricallyand briefly;
(2) written forms of the several special findings thatmight properly be made under the pleadings and evidence; or
(3) the issues by another method, and require the writtenfindings it deems most appropriate.
The court shall give to the jury the necessary explanationand instruction concerning the matter submitted to enable thejury to make its findings on each issue.
(B) Judgment. After a special verdict is returned, thecourt shall enter judgment in accordance with the jury’sfindings.
(C) Failure to Submit Question; Waiver; Findings by Court.If the court omits from the special verdict form an issue offact raised by the pleadings or the evidence, a party waives theright to a trial by jury of the igsue omitted unless before thejury retires the party demands its submission to the jury. Thecourt may make a finding as to an issue omitted without ademand; or, if the court fails to do so, it is deemed to havemade a finding in accord with the judgment on the specialverdict.
(A) Majority Verdict: Stipulations Regarding Number ofJurors and Verdict. The parties may stipulate in writing or onthe record that
(1) the jury will consist of any number less than 6,
(2) a verdict or a finding of a stated majority of thejurors will he taken as the verdict or finding of the jury,or
(3) if more than six jurors were impaneled, all the jurorsmay deliberate.
Except as provided in MCR 5.740(C), in the absence of suchstipulation. a verdict in a civil action tried by 6 jurors willbe received when 5 jurors agree.
(B) Return: Poll.
(1) The jury must return its verdict in open court.
(2) A party may require a poll to be taken by the courtasking each juror if it is his or her verdict.

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(3) If the number of jurors agreeing is less thanrequired, the jury must be sent back for further deliberation:otherwise, the verdict is complete, and the court shalldischarge the jury.
(C) Discharge From Action: New Jury. The court maydischarge a jury from the action:
(1) because of an accident or calamity requiring it:
(2) by consent of all the parties:
(3) whenever an adjournment or mistrial is declared:
(4) whenever the jurors have deliberated and it appearsthat they cannot agree.
The court may order another jury to be drawn, and the sameproceedings may be had before the new jury as might have beenhad before the jury that was discharged.
(D) Responsibility of Officers.
(1) All court officers, including trial attorneys, mustattend during the trial of an action until the verdict of thejury is announced.
(2) A trial attorney may, on request, be released by thecourt from further attendance, or the attorney may designate anassociate or other attorney to act for him or her during thedeliberations of the jury.

RULE 2.515. SPECIAL VERDICTS. MOTION FORDIRECTED VERDICT.

A party may move for a directed verdict at the close of theevidence offered by an opponent. The motion must state specificgrounds in support of the motion. If the motion is not granted,the moving party may offer evidence without having reserved theright to do so, as if the motion had not been made. A motion fora directed verdict that is not granted is not a waiver of trialby jury, even though all parties to the action have moved fordirected verdicts.
(A) Use of Special Verdicts: Form. The court may requirethe jury to return a special verdict in the form of a writtenfinding on each issue of fact, rather than a general verdict.If a special verdict is required, the court shall, in advance ofargument and in the absence of the jury, advise the attorneys ofthis fact and, on the record or in writing, settle the form ofthe verdict. The court may submit to the jury:
(1) written questions that may be answered categoricaly andbriefly;
(2) written forms of the several special findings thatmight properly be made under the pleadings and evidence: or
(3) the issues by another method, and require the writtenfindings it deems most appropriate.
The court shall give to the jury the necessary explanationand instruction concerning the matter submitted to enable thejury to make its findings on each issue.
(B) Judgment. After a special verdict is returned, thecourt shall enter judgment in accordance with the jury’sfindings.
(C) Failure to Submit Question: Waiver: Findings by Court.If the court omits from the special verdict form an issue offact raised by the pleadings or the evidence, a party waives theright to a trial by jury of the issue omitted unless the partydemands its submission to the jury before it retires fordeliberations. The court may make a finding with respect to

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an issue omitted without a demand. If the court fails todo so. it is deemed to have made a finding in accord with thejudgment on the special verdict.

RULE 2.516. MOTION FOR DIRECTED VERDICT.INSTRUCTIONS TO JURY.
(A) Request for Instructions.
(1) At a time the court reasonably directs, the partiesmust file written requests that the court instruct the jury onthe law as stated in the requests. In the absence of a directionfrom the court, a party may file a written request for juryinstructions at or before the close of the evidence.
(2) In addition to requests for instructions submittedunder subrule (A)(1), after the close of the evidence each partyshall submit in writing to the court a statement of the issuesand may submit the party’s theory of the ease as to each issue.The statement must be concise, be narrative in form, and setforth as issues only those disputed propositions of fact whichare supported by the evidence. The theory may include thoseclaims supported by the evidence or admitted.
(3) A copy of the requested instructions must be served onthe adverse parties in accordance with MCR 2.107.
(4) The court shall inform the attorneys of its proposedaction on the requests before their arguments to the jury.
(5) The court need not give the statements of issues ortheories of the case in the form submitted if the courtpresents to the jury the material substance of the issues andtheories of each party.
(B) Instructing the Jury.
(1) After the jury is sworn and before evidence is taken,the court shall give such preliminary instructions regarding theduties of the jury, trial procedure, and the law applicable tothe case as are reasonably necessary to enable the jury tounderstand the proceedings and the evidence. MCR 2.516(D)(2)does not apply to such preliminary instructions.
(2) At any time during the trial, the court may, with orwithout request, instruct the jury on a point of law if theinstruction will materially aid the jury to understand theproceedings and arrive at a just verdict.
(3) Before or after arguments or at both times, as thecourt elects, the court shall instruct the jury on theapplicable law, the issues presented by the case, and, if aparty requests as provided in subrule (A)(2), that party’stheory of the ease. The court, at its discretion, may alsocomment on the evidence, the testimony, and the character of thewitnesses as the interests of justice require.
(4) While the jury is deliberating, the court may furtherinstruct the jury in the presence of or after reasonable noticeto the parties,
(5) Either on the request of a party or on the court’sown motion, the court may provide the jury with
(a) a full set of written instructions,
(b) a full set of electronically recorded instructions,or
(c) a partial set of written or recorded instructions ifthe jury asks for clarification or restatement of a particularinstruction or instructions or if the parties agree that apartial set may be provided and agree on the portions to beprovided.

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If it does so, the court must ensure that such instructionsare made a part of the record.
(C) Objections. A party may assign as error the giving ofor the failure to give an instruction only if the party objectson the record before the jury retires to consider the verdict(or, in the case of instructions given after deliberations havebegun, before the jury resumes deliberations), statingspecifically the matter to which the party objects and thegrounds for the objection. Opportunity must be given to make theobjection out of the hearing of the jury.ã
(D) Model Civil Jury Instructions.
(1) The Committee on Model Civil Jury Instructionsappointed by the Supreme Court has the authority to adopt modelcivil jury instructions (M Civ JI) and to amend or repeal thoseinstructions approved by the predecessor committee. Beforeadopting, amending, or repealing an instruction, the committeeshall publish notice of the committee’s intent, together withthe text of the instruction to be adopted, or the amendment tobe made, or a reference to the instruction to be repealed, inthe manner provided in MCR 1.201. The notice shall specify thetime and manner for commenting on the proposal. The committeeshall thereafter publish notice of its final action on theproposed change, including, if appropriate, the effective dateof the adoption, amendment, or repeal. A model civil juryinstruction does not have the force and effect of a courtrule.
(2) Pertinent portions of the instructions approved by theCommittee on Model Civil Jury Instructions or its predecessorcommittee must be given in each action in which juryinstructions are given if
(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party.
(3) Whenever the committee recommends that no instructionbe given on a particular matter, the court shall not give aninstruction unless it specifically finds for reasons stated onthe record that
(a) the instruction is necessary to state the applicablelaw accurately, and
(b) the matter is not adequately covered by other pertinentmodel civil jury instructions.
(4) This subrule does not limit the power of the court togive additional instructions on applicable law not covered bythe model instructions. Additional instructions when given mustbe patterned as nearly as practicable after the style of themodel instructions and must be concise, understandable,conversational, unslanted, and nonargumentative.
A party may move for a directed verdict at the close of theevidence offered by an opponent. The motion must state specificgrounds in support of the motion. If the motion is not granted,the moving party may offer evidence without having reserved theright to do so. as if the motion had not been made. A motion fora directed verdict that is not granted is not a waiver of trialby jury, even though all parties to the action have moved fordirected verdicts.

Rule 6.414. CONDUCT OF JURY TRIAL.

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(A) Before trial begins, the court should give the juryappropriate pretrial instructions.
(B) Court’s Responsibility. The trial court must controlthe proceedings during trial, limit the evidence and argumentsto relevant and proper matters, and take appropriate steps toensure that the jurors will not be exposed to information orinfluences that might affect their ability to render animpartial verdict on the evidence presented in court. The courtmay not communicate with the jury or any juror pertaining to thecase without notifying the parties and permitting them to bepresent. The court must ensure that all communicationspertaining to the case between the court and the jury or anyjuror are made a part of the record.
(C) Opening Statements. Unless the parties and the courtagree otherwise, the prosecutor, before presenting evidence,must make a full and fair statement of the prosecutor’s case andthe facts the prosecutor intends to prove. Immediatelythereafter, or immediately before presenting evidence, thedefendant may make a like statement. The court may imposereasonable time limits on the opening statements.
(D) Note Taking by Jurors. The court may permit the jurorsto take notes regarding the evidence presented in court. If thecourt permits note taking, it must instruct the jurors that theyneed not take notes, and they should not permit note taking tointerfere with their attentiveness. The court also must instructthe jurors to keep their notes confidential except as to otherjurors during deliberations. The court may, but need not, allowjurors to take their notes into deliberations. If the courtdecides not to permit the jurors to take their notes intodeliberations, the court must so inform the jurors at the sametime it permits the note taking. The court shall ensure that alljuror notes are collected and destroyed when the trial isconcluded.
(E) Juror Questions. The court may, in its discretion,permit the jurors to ask questions of witnesses. If the courtpermits jurors to ask questions, it must employ a procedure thatensures that inappropriate questions are not asked, and that theparties have the opportunity to object to the questions.
(F) View. The court may order a jury view of property orof a place where a material event occurred. The parties areentitled to be present at the jury view. During the view, nopersons other than, as permitted by the trial judge, the officerin charge of the jurors, or any person appointed by the court todirect the jurors’ attention to a particular place or site, andthe trial judge, may speak to the jury concerning a subjectconnected with the trial; any such communication must berecorded in some fashion.
(G) Closing Arguments. After the close of all the evidence,the parties may make closing arguments. The plaintiff or theprosecutor is entitled to make the first closing argument. Ifthe defendant makes an argument, the plaintiff or the prosecutormay offer a rebuttal limited to the issues raised in thedefendant’s argument. The court may impose reasonable timelimits on the closing arguments.
(H) Instructions to the Jury. Before closing arguments,the court must give the parties a reasonable opportunity tosubmit written requests for jury instructions. Each party mustserve a copy of the written requests on all other parties. Thecourt must inform the parties of its proposed action

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on the requests before their closing arguments. Afterclosing arguments are made or waived, the court must instructthe jury as required and appropriate, but at the discretion ofthe court, and on notice to the parties, the court may instructthe jury before the parties make closing arguments and give anyappropriate further instructions after argument. After jurydeliberations begin, the court may give additional instructionsthat are appropriate.
(I) Materials in the Jury Room. The court may permit thejury, on retiring to deliberate, to take into the jury room awriting, other than the charging document, setting forth theelements of the charges against the defendant and any exhibitsand writings admitted into evidence. On the request of a partyor on its own initiative, the court may provide the jury with afull set of written instructions, a full set of electronicallyrecorded instructions, or a partial set of written or recordedinstructions if the jury asks for clarification or restatementof a particular instruction or instructions or if the partiesagree that a partial set may be provided and agree on theportions to be provided. If it does so, the court must ensurethat such instructions are made a part of the record.
(J) Review of Evidence. If, after beginning deliberation,the jury requests a review of certain testimony or evidence, thecourt must exercise its discretion to ensure fairness and torefuse unreasonable requests, but it may not refuse a reasonablerequest. The court may order the jury to deliberate furtherwithout the requested review, so long as the possibility ofhaving the testimony or evidence reviewed at a later time is notforeclosed.
Staff Comment: MCR 2.513 is completely rewritten. The rule collects the rules governing jury trials in civil and criminal cases in a single rule. Additional provisions ensure that jurors have the necessary information to enable them to deliberate and reach a decision based on the facts and the law applicable to a case.

Subrule (A) requires a court to give preliminary instructions to the jury, including a statement of the elements of the civil claims or charged offenses. The court is required provide a written copy of the instructions to the jurors.

Proposed subrule (B) is substantially the same as MCR 6.414(B).

Proposed subrule (C) is substantially the same as MCR 6.414(C)

Proposed subrule (D) gives the court discretion to allow the parties to present interim commentary during the trial. Interim commentary, which are statements made by counsel in the course of trial to assist the jurors in comprehending or putting testimony or other evidence in the context of the theory of the case, is especially useful in a long or complex trial. It has been allowed in some jurisdictions, and is currently in use in Massachusetts. See, e.g., Consorti v Armstrong World Industries, 72 F3d 1003, 1008 (CA 2, 1995). The court may limit or bar interim commentary by a party when it appears that the opposing party will not be making such comment.

Proposed subrule (E) would allow the use of reference documents or notebooks by jurors. Such notebooks may reduce the jurors’ need to take notes and would provide documents and other materials for the jurors’ reference throughout the trial.

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Proposed subrule (F) would allow the parties to use deposition summaries in lieu of reading deposition transcripts into the record. The proposed rule anticipates that the party proffering the testimony first would prepare the summary and the opposing party would then add a narrative to the summary based on that party’s perspective of the deposition. If either side believed a summary was wrong or misleading, objections would be resolved by the trial judge.

Proposed subrule (G) would allow the court to craft a procedure designed to allow the jurors to better understand the expert testimony introduced on a particular subject. For example, the court could allow the experts to testify out of order so that the testimony of opposing experts in a given field would be heard sequentially. The court also could convene a panel discussion at which the attorneys would ask questions of the experts to educate the jurors in a particular field, followed by specific questions related to the experts’ opinions on the relevant topic.

Proposed subrule (H) is substantially the same as MCR 6.414(D). The proposed rule eliminates language that allows a court to bar jurors from taking their notes into the jury room during deliberations.

Subrule (I) is substantially the same as MCR 6.414(E). The proposed rule ensures that the parties’ objections, if any, will be heard outside the jury’s presence.

Proposed subrule (J) incorporates the jury view provisions presently contained in MCR 2.513(A) and MCR 6.414(F).

Proposed subrule (K) would allow jurors to discuss the evidence in a case as it is admitted. Such discussions may promote timely questions to be propounded to the witnesses by the court. But jurors should be instructed that such discussions are tentative and are intended only to promote a better understanding of the evidence as is it introduced.

Proposed subrule (L) is substantially the same as MCR 6.414(G).

Proposed subrule (M) expands on MCR 2.516(B)(3). It would allow the court to summarize the evidence and to comment on the weight of the evidence, much like the attorneys do in closing arguments.

Proposed subrule (N)(1) adopts language from MCR 6.414(H) regarding final instructions to the jury.

Proposed subrule (N)(2) would allow a trial court to ask the jury if it needs immediate clarification on the final instructions that it received. The proposed rule also would provide for notification of the jury that it later may ask for a clarification on an instruction and would provide a procedure to handle such requests.

Proposed subrule (N)(3) would require the trial court to provide jurors with a copy of the final jury instructions.

Proposed subrule (N)(4) would specify the procedures a trial court may employ if a jury has reached an impasse.

Proposed subrule (O) is substantially the same as MCR 6.414(I).

Proposed subrule (P) is substantially the same as MCR 6.414(J). It provides further elaboration on the materials that the jury may take into the jury room to assist in deliberations.

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The amendments of MCR 2.516 delete provisions that now are in MCR 2.513. The amendments to 2.512 incorporate the provisions that are now in MCR 2.516.

MCR 6.414 is deleted in its entirety, having been subsumed by MCR 2.513.

The staff comment is not an authoritative construction by the Court. A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by November 1, 2006, at P.O. Box 30052, Lansing, MI 48909, MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2005-19. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.