By statute, in a complex civil case a court may, in its discretion, order a special jury upon the application of any party.117 The special jury statute is designed to achieve a fair representation of the community on the jury panel and to provide for intelligent, educated and competent jurors for the adjudication of complex cases.118 The party applying for a special jury usually must pay the expense incurred by having a special jury, the cost of which ultimately may be taxed as part of the costs of the case.119 However, the court has the power to allocate costs equally between the parties, if justified by the circumstances.119.1
When a special jury is to be called, the court determines the number of jurors to be summoned, taking into consideration the number of parties, the estimated length of the trial, and other information pertinent to the number likely to be needed to obtain a jury.120 Prospective jurors are selected from the questionnaires that were submitted by persons who were summoned for service as regular jurors and who have completed their service. The court may allow counsel to have input on appropriate questions to be included in the questionnaire.120.1 The court chooses persons who appear qualified for special jury service by reason of education, training or experience. As far as is practicable, the composition of the special jury is to be similar in distribution of race, gender, age, religion, national origin and other legally significant characteristics to the composition of the population of the county in which the trial is to be held, as shown by the last decennial census.121 As the primary qualifications for special jurors relate to education, training and experience, however, racial, religious, age and gender demographics should not be primary considerations, although they remain relevant.
Once the court establishes the list of potential jurors, summonses are issued identifying the action, the names of the parties, attorneys and witnesses, the estimated length of the trial, and other such pertinent information or instructions as the assigned judge determines will aid in the selection of the jury.122 The jury is selected in accordance with the procedures utilized for selecting a regular petit jury. If it happens that, as a result of excusals for cause or peremptory challenges, there is an insufficient number of prospective jurors remaining, additional jurors may be drawn randomly from the regular jury pool, provided that the party who applied for a special jury consents.122.1
The decision whether to impanel a special jury is discretionary with the trial court.123 In determining whether to impanel a special jury, courts consider such factors as the length of the trial, the volume of evidence and the complexity of the legal issues.124 Courts will also consider whether the need for a special jury can be avoided by such measures as instructions to the jury before the commencement of opening arguments, special verdicts or general verdicts with special interrogatories, allowing jurors to take notes and use them during deliberations, allowing the jury to have a transcript of the testimony, the use of summaries, charts or calculations, use of a special master to make findings of law and conclusions of fact based on the evidence and the use of court-appointed expert witnesses.125
Any request for a special jury must be timely. In the absence of special circumstances, a court will not consider the application for a special jury after the trial date is set. 126 A party who has applied for a special jury may withdraw such application and have the case tried by a general jury provided that the granting of such withdrawal will not unduly prejudice or inconvenience the opposing party. 127
Although the special jury statute contemplates that the special jury have certain qualities or qualifications helpful to the resolution of the specific case, a litigant has no constitutional right to require the court to designate the qualifications of the jurors who will decide a particular case.128
117. 10 Del. C. § 4506; Minner v. American Mortg. & Guar. Co., 791 A.2d 826, 834 (Del. Super. 2000) (citing treatise). The special jury statute applies only in civil cases. Rush v. State, 491 A.2d 439, 443 (Del. 1985). The practice of special juries dates back at least to 14th century England. Id.
118. Haas v. United Technologies Corp., 450 A.2d 1173, 1185 (Del. 1982), appeal dismissed, 459 U.S. 1192(1983).
119. 10 Del. C. § 4506. See § 26:5.
119.1. Ison v. E.I. du Pont de Nemours & Co., Civ. A. Nos. 97C-06-193CHT, 97C-06-194CHT & 97C-07-113CHT, slip op. at 13, Toliver, J. (Del. Super. Apr. 27, 2004).
120. Plan for the Selection of Special Juries ¶2 (Del. Super. Aug. 22, 1994).
120.1. Ison v. E.I. du Pont de Nemours & Co., Civ. A. Nos. 97C-06-193CHT, 97C-06-194CHT & 97C-07-113CHT, slip op. at 13, Toliver, J. (Del. Super. Apr. 27, 2004).
121. Plan for the Selection of Special Juries ¶3 (Del. Super. Aug. 22, 1994).
122. Plan for the Selection of Special Juries ¶5 (Del. Super. Aug. 22, 1994).
122.1 Plan for the Selection of Special Juries ¶2 (Del. Super. Aug. 22, 1994).
123. Noramco (Delaware), Inc. v. Carew Assoc., Inc., C.A. No. 85C-MY-54, slip op. at 2, Herlihy, J. (Del. Super. Oct. 22, 1990).
124. Noramco (Delaware), Inc. v. Carew Assoc., Inc., C.A. No. 85C-MY-54, slip op. at 2, Herlihy, J. (Del. Super. Oct. 22, 1990); In re Asbestos Litig., C.A. No. 77C-ASB-2, slip op. at 2-3, Taylor, J. (Del. Super. June 28, 1988) (ORDER), reh’g denied, C.A. No. 77C-ASB-2, Taylor J. (Del. Super. Sept. 9, 1988) (ORDER).
125. Bradley v. A. C. & 5. Co., C.A. No. 84C-MY-145 & 85C.FE-l0, slip op. at 5-6, Taylor, J. (Del. Super. May 23, 1989); In re Asbestos Litig., C.A. No. 77C-ASB-2, slip op. at 2-3, Taylor, J. (Del. Super. June 28, 1988) (ORDER), reh’g denied, C. A. No. 77C-ASB-2, Taylor J. (Del. Super. Sept. 9, 1988) (ORDER).
126. Super. Ct. Civ. R. 40(b); Sharpe v. Thomson, 51 Del. 431, 147 A.2d 649, 650 (Del. Super. 1958).
127. Super. Ct. Civ. R. 40(b).
128. In re Asbestos Litig., 551 A.2d 1296, 1299 (Del. Super. 1988).
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