Ariz. R. Civ. P. 40

As amended through August 22, 2024

Rule 40 - Trial Procedures

(a) Scope. This rule governs jury trials and, to the extent applicable, trials to the court.

(b) Objectives. The court should adopt trial procedures as necessary or appropriate to facilitate a just, speedy, and efficient resolution of the action. To achieve this objective, the court may:

(1) impose time limits and allocate trial time;

(2) sequence the presentation of claims, evidence, and arguments;

(3) allow advance scheduling of witnesses and other evidence;

(4) order pretrial admission of exhibits or other evidence;

(5) allow electronic presentation of evidence; and

(6) adopt other means of managing or expediting trial.

(c) Order of Trial. A trial should proceed in the following order, unless the court orders otherwise for good cause:

(1)Preliminary Instructions. Immediately after the jury is sworn, the court should give preliminary instructions as provided in Rule 51(b)(2).

(2)Opening Statements. Each party may make a concise opening statement regarding the facts that it proposes to establish by evidence at trial. Any party may decline to make an opening statement. Opening statements should proceed in the following order:

(A) the plaintiff;

(B) the defendant, unless deferred until after the close of the plaintiff's presentation of evidence; and

(C) other parties, unless deferred until after the close of the plaintiff's and defendant's presentations of evidence, in the order the court directs.

(3)Evidence. Unless the court orders otherwise, the parties should introduce evidence in the following order:

(A) plaintiff;

(B) defendant;

(C) other parties, if any, in the order the court directs;

(D) plaintiff's rebuttal evidence;

(E) defendant's rebuttal evidence in support of the defendant's counterclaim(s), if any; and

(F) rebuttal evidence from other parties or with respect to crossclaims or third-party claims, as the court permits and in the order it directs.

(4)Final Instructions. Final jury instructions, as provided in Rule 51(b)(3), may be given before or after the parties' closing arguments.

(5)Closing Arguments. The party with the burden of proof on the whole case under the pleadings should make the first and last argument in closing. If the remaining parties have different claims or defenses and are represented by different counsel, the court should prescribe the order in which they will make their respective closing arguments.

(d) Omitted Testimony. At any time before closing arguments begin and if justice requires, the court may allow a party to introduce omitted testimony on such terms as the court orders.

(e) Jury Deliberations.

(1)Place. During deliberations, jurors must be kept together in a convenient place in the charge of an officer that the court designates. The court may:

(A) permit jurors to separate while not deliberating; or

(B) on motion or on its own, require them to be sequestered in the charge of a designated officer when they leave the courtroom or place of deliberation.

(2)Time. Juror deliberations should take place during normal work hours unless the court, after consulting the jury and the parties, determines that:

(A) the interests of justice require evening or weekend deliberations; and

(B) it will not impose an undue hardship on the jurors.

(f) Juror Notes and Notebooks.

(1)Juror Notes. The court should instruct the jurors that they may take notes during the trial for their use during recesses, discussions, and deliberations. The court should provide suitable writing materials for this purpose.

(2)Juror Notebooks. The court may allow documents and exhibits to be included in notebooks for each juror's use during trial to help the jurors perform their duties.

(3)Access. During recesses, discussions, and deliberations, jurors should have access to their notes and to any juror notebooks allowed by the court.

(4)Disposing of Juror Notes and Notebooks. When the jury is discharged, any juror notes and notebooks must be collected and promptly destroyed by the officer in charge of the jurors.

(g) Officer's Duties. Unless the court orders otherwise, the officer in charge of the jurors must not:

(1) make, or allow, any improper communication to them; or

(2) communicate with any person about the jury's deliberations or any verdict the jury may have reached.

(h) Juror Admonitions.

(1)Discussions.

(A) The court should admonish the jury that until deliberations are completed, and at all times when the jurors are allowed to separate during trial, they must not converse among themselves or with anyone else on any subject connected with the trial while not deliberating.

(B) Subject to such limits as the court may impose for good cause, the jurors should be instructed that they are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, so long as they reserve judgment about the action's outcome until deliberations begin.

(2)Other Influences. The court should admonish jurors not to read or view any media stories or accounts from any other sources regarding the action, or view the place or places where the events at issue occurred, until after they have been discharged or dismissed.

(i) Juror Communications.

(1)To the Court During Deliberations. The officer in charge of the jurors should notify the court of any juror request to communicate with the court during deliberations. If the jury is brought into court, its foreperson should state to the court, either orally or in writing, what it desires to communicate.

(2)To Witnesses or the Court Before Deliberations. Before deliberations begin, jurors may submit to the court written questions directed to witnesses or to the court. Counsel must be allowed to object to such questions on the record and out of the jury's presence. For good cause, the court may prohibit or limit jury questions to witnesses.

(j) Assisting Jurors at Impasse. If the jury advises the court that it has reached an impasse, the court may, in counsel's presence, ask the jurors to determine whether and how the court and counsel can assist in their deliberative process. After receiving the jurors' response, if any, the judge may direct that further proceedings occur as appropriate.

(k) Dismissal and Discharge of Jury; New Trial.

(1)Discharge Before Verdict. After the action is submitted to them, the jurors may be discharged if the court determines that they are unlikely to reach a verdict, or if a calamity, sickness, or accident requires it. If a jury is discharged without having rendered a verdict, the action may be tried again.

(2)Dismissal After Verdict. When dismissing a jury after the action's conclusion, the court should inform the jurors that they are discharged from service and, if appropriate, it may release them from their duty of confidentiality and explain their rights regarding inquiries from counsel, the media, or any other person.

(l) Memoranda. Posttrial memoranda may not be filed, except:

(1) in support of or in opposition to a motion under Rule 50(b), 52(b), 59, or 60; or

(2) as ordered by the court.

(m) Excluding Minors from Trial. When trying an action or proceeding of a scandalous or obscene nature, the court may exclude minors from the courtroom if their presence- as parties or witnesses-is not necessary.

Ariz. R. Civ. P. 40

Amended effective 1/1/2017.

Comment

1995 Amendment to Rule 40(j) [Formerly Rule 39(h) ]

Many juries, after reporting to the judge that they have reached an impasse in their deliberations, are needlessly discharged very soon thereafter and a mistrial declared when it would be appropriate and might be helpful for the judge to offer some assistance in hopes of improving the chances of a verdict. The judge's offer would be designed and intended to address the issues that divide the jurors, if it is legally and practically possible to do so. The invitation to dialogue should not be coercive, suggestive or unduly intrusive.

The judge's response to the jurors' report of impasse could take the following form:

"This instruction is offered to help your deliberations, not to force you to reach a verdict.

"You may wish to identify areas of agreement and areas of disagreement. You may then wish to discuss the law and the evidence as they relate to areas of disagreement.

"If you still have disagreement, you may wish to identify for the court and counsel which issues or questions or law or fact you would like counsel or court to assist you with. If you elect this option, please list in writing the issues where further assistance might help bring about a verdict.

"I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is reasonably probable that you could reach a verdict as a result of this procedure, it would be wise to give it a try."

If the jury identifies one or more issues that divide them, the court, with the help of the attorneys, can decide whether and how the issues can be addressed. Among the obvious options are the following; giving additional instructions; clarifying earlier instructions; directing the attorneys to make additional closing argument; reopening the evidence for limited purposes; or a combination of these measures. Of course, the court might decide that it is not legally or practically possible to respond to the jury's concerns.