Jury instructions are one of the most important, yet most overlooked, parts of a trial. Consider how jury instructions are presented for a moment. The only impartial participant in the trial process, the person sitting up on a pedestal above everyone else in the courtroom, cloaked in a robe, will read the instructions to the jury and tell them how to decide your client’s fate. Merely considering how jury instructions are delivered illustrates their importance. Slaving away over a perfect legally correct set of instructions could all be for naught if the jury cannot understand the instructions they are given.
I. A Background Look at Comprehension of Jury Instructions
There is no shortage of social science research on jury behavior. Numerous studies have demonstrated how juries deliberate, how jurors think and the extent to which they understand jury instructions. For years, research has suggested that jurors do not understand the instructions given to them at the conclusion of a trial. See Nancy Marder, Bringing Jury Instructions into the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454 (2006); Bethany K. Dumas, Jury Trials: Lay Jurors, Pattern Instructions, and Comprehension Issues, 67 Tenn. L. Rev. 701 (2000); Ronald W. Eades, The Problem of Jury Instructions in Civil Cases, 27 Cumb. L. Rev. 1017 (1996-97); Geoffrey P. Kramer & Dorean M. Koenig, Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension Project, 23 U. Mich. J.L. Reform 401, 432 (1990). Evidence suggesting that juries do not understand jury instructions comes from several sources, including jury questions posed to the court during deliberation, case law from states that allow testimony concerning juror deliberations and case law from states that allow testimony about conversations between jurors during deliberations. See Dumas, supra. Researchers believe this lack of understanding can be attributed to several problems including use of legalese, ambiguous language and awkward grammatical construction, just to name a few. See Marder, supra citing Robert F. Forston, Sense and Non-Sense: Jury Trial Communications, 1975 BYU L. Rev. 601, 617 (stating that jury studies have generally found that “legalese” hinders jurors’ efforts to understand instructions); Bernard S. Meyer & Maurice Rosenberg, Questions Juries Ask: Untapped Springs of Insight, 55 Judicature 105, 106-07 (1971) (examining questions submitted by juries and noting that they often arise from unfamiliar or abstract words) and Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306, 1328 (1979) (finding that jury instructions are not well understood and that “specific linguistic constructions may be at the root of at least some of the comprehension problems”).
Consider the following excerpt from a Massachusetts Institute of Technology-educated Ph. D., Arnold King, who served as a juror in a criminal case in March of 2006:
Although I thought I had understood the judge’s instructions as he was reading them, he offered to provide us with a written copy, and when we were given one copy there was sentiment that all of us should obtain copies, so that was done. We began our deliberations by going over the instructions, but any hopes that they would provide definitive guidance were unfounded.
In my view, the instructions…were almost impossible to sort out. I could imagine a lot of jurors simply giving up on interpreting the law and instead making a judgment based entirely on ‘gut feel.’ That is, rather than making a logical determination, a juror might say, “I feel like it was murder” or “I feel like it wasn’t murder.” In our case, I think we tried very hard to understand and follow the law. But we also honored our gut feelings, and I believe it was right to do so.
Arnold King, Law and Order, TCS Daily, Apr. 14, 2006, http://www.tcsdaily.com/article.aspx?id=041406C.
The problem of jury comprehension (or lack thereof) is not always recognized by lawyers or courts. In January of 2000, the Supreme Court of the United States decided the case of Weeks v. Angelone, 528 U.S. 225, 120 S. Ct. 727 (2000). The case dealt with the issue of whether a trial judge in a death penalty case was obliged to clear up jury confusion over a sentencing instruction. The majority opinion authored by the late Chief Justice Rehnquist stated that it can be presumed that jurors understand instructions given to them. Yet, this presumption seems to fly in the face of social science research by psychologists, sociologists and linguists. Apparently, under the Weeks decision, it is adequate for a trial judge to answer a jury’s question about the meaning of an instruction by simply re-reading the language of the original instruction. With this bleak prognosis on comprehension of jury instructions, what is a lawyer to do?
II. Sources of Instructions
There are many sources of jury instructions. Most states have published pattern jury instructions. Local pattern instructions are a great place to start, and some states even require that pattern instructions be used. State Supreme Court websites sometimes post form instructions as well. Perhaps the best resource is the work of your colleagues. They may have instructions previously given by the judge in your case or from another local judge. Previously given instructions can certainly be helpful in tailoring the instructions you want the judge in your case to give.
Sometimes there is no template instruction available for an issue. In these circumstances, there are two other places you can look for guidance in drafting an instruction: case law and statutes. Be sure that if you are modeling your instruction after case law that you are modeling the instruction based on the holding in the case, not dicta. If you are basing an instruction on a statute, it is tempting to simply quote the statute verbatim. Be forewarned, however, that this can lead to a very lengthy and confusing instruction. The material that follows will offer suggestions to solve this dilemma. Other sources for jury instructions include Lexis-Nexis, Westlaw and other legal research sites on the internet. Pattern jury instructions are merely diamonds in the rough. Following a few simple tips and tricks will help polish them up and turn them into clear and easy to understand instructions that will truly assist the trier of fact.
III. Considerations in Drafting User-Friendly Instructions
All good instructions are accurate, but not all accurate instructions are good. It goes without saying that it is important for the jury instructions you submit to the court to be accurate statements of law. Your instructions should always provide proper citation to authority so that the court and opposing counsel can verify your statements of law. Courts will refuse to give instructions which misstate the law. In addition, courts refuse to give instructions that are immaterial, improper under the facts of the case, erroneous, incomplete, repetitive, misleading, confusing, argumentative, conflict with other instructions or mischaracterize evidence. But the question remains: How do you go from accurate statements of law to an instruction a jury can understand? The answer is easier than you may think – simply write your jury instructions in plain English.
Research suggests that translating jury instructions into plain English improves jury comprehension. Perhaps not surprisingly, in many cases when instructions were re-written in plain English, juries also had less difficulty understanding them. See Marder, supra and Dumas, supra. Some studies say that comprehension can improve from fifty to sixty-five percent, all the way up to eighty percent once re-written. See Raymond Ward, Clear, Effective Jury Instructions, For the Defense, July 2004 citing Joseph Kimble, How to Mangle Court Rules and Jury Instructions, 8 Scribes J. Legal Writing 39 (2001-02). Other studies have concluded that comprehension of instructions increased as a function of exposure to instructions, and one study concluded that jurors who were given copies of the written instructions actually understood them better. See Marder, supra. But see, Heuer & Penrod, Instructing Jurors: A Field Experiment with Written and Preliminary Instructions, 13 Law & Human Behav. 409 (1989).
Saying that instructions should be written in plain English is easy enough, but actually doing it can be much more difficult. The evening news and hometown newspapers have mastered the concept. The same public who watches TV and reads the newspaper also serves on juries. Consider the following plain English tips for making your next set of jury instructions easier to understand.
A. The Art of Plain English Jury Instructions
The very first step after identifying the applicable pattern instructions applicable to your case should be to re-write them into plain English (unless you are in a state that requires pattern instructions to be used – and there are some that do). Some pattern instructions may be used without much modification, for example, instructions on credibility of witnesses. Other instructions may require significant modification before they are understandable. Read and consider each pattern instruction carefully and see how each can be modified to reflect a plain English statement.
Make your instructions conversational. Once you have written them, read them out loud. This is how a jury will hear them. If you feel as though you are droning on and on, with no end in sight, that is likely the way the jurors will feel as well. Also, in some jurisdictions, instructions are only read aloud and are not provided to the jurors on paper.
Convey one idea, topic or legal issue per instruction and avoid compound sentences. This breaks the law into bite-sized pieces for your jury, making concepts easier to understand and apply. Avoid double negatives. No one wants to not have a jury understand the law. See how confusing it can be? Similarly, write in the affirmative, not the negative. For example, “Plaintiff must prove negligence to recover,” rather than “If Plaintiff does not prove negligence, she cannot recover.”
There is no room in plain English for legalese or legal jargon, so avoid it at all available opportunities. Jurors do not understand most of it anyway and, as can be seen from the Weeks case, judges do not have to explain it to the jury. Additionally, you may not want the judge to explain it. Where use of a legal term cannot be avoided, define it within the instruction. Do not place a definition on a separate page forcing jurors to turn pages back and forth. Clearly defining legal terms when they are used will cut down on confusion in the deliberation room and keep the focus on your case – rather than how a particular legal term may have been used on an episode of NBC’s Law & Order.
Strive to always use active rather than passive voice in your instructions. For example, “Plaintiff has the burden of proof” rather than “the burden of proof is on the Plaintiff.” Using active voice will keep your sentences clearer and will keep them from becoming unnecessarily wordy and confusing.
Nothing will confuse a juror more quickly than instructions that refer to “Plaintiff’ and “Defendant.” Tailor your instructions to your case and use party names. In law school, most people learn that using “Plaintiff” rather than “Mr. Jones” is more persuasive because it depersonalizes him. Using these impersonal terms can quickly confuse a jury leaving them struggling to figure out which party is which. Do the work for them and eliminate the doubt. You certainly do not want the jury to find for the plaintiff thinking that the plaintiff is your client. To illustrate, consider Ian Frazier’s illustrative example with the infamous Wile E. Coyote and Acme Company in a products liability suit filed by Mr. Coyote against Acme for its allegedly defective rocket sled. See Ward, supra. The product liability law in such a case will likely refer to the manufacturer, the product and the Plaintiff. When it is time to put the law into a jury instruction, substitute Acme for the manufacturer, the rocket sled for the product, and Mr. Coyote for the plaintiff: “To prevail against Acme, Mr. Coyote must prove that the rocket sled was defective.”
Finally, put all of your instructions in a logical order and limit them to a reasonable number. Background and general instructions should come first including instructions on burden of proof, evidentiary standards, experts and credibility of witnesses. Once the jury has background instructions, move into the substantive law of your case and the elements for the causes of action. The next step is to provide instructions on any applicable defenses the defendant(s) may have and then instructions on damages. Conclude by incorporating a few instructions regarding deliberations so that all jurors understand how the deliberation process works.
B. Comparing Instructions: The Good, the Bad and the Ugly
By way of example, consider the following product liability jury instructions re-written in plain English. You may even find that the law becomes clearer to you after reading these.
Legal Version: Causation – Strict Products Liability If you decide that the product was defective or unreasonably dangerous, you must consider whether the product caused or enhanced Plaintiff’s injuries. To meet this burden, Plaintiff must only show that the greater likelihood or probability that the harm complained of was due to the defective nature of the product. Conduct of the Defendant is irrelevant to this inquiry. The only focus is on the product itself. The product must be a legal cause of Plaintiff’s injury. If the harm would have occurred anyway, then the Defendant is not liable. It does not matter whether other concurrent causes contributed to Plaintiff’s injuries, so long as you find the product contributed to the harmful result in a material or important way. That this contribution was not slight, insignificant or tangential to causing the harm.
Plain English Version:
If you find the lawnmower was defective, you must decide whether it caused or worsened Mr. A’s injuries. Mr. A must prove that it is more likely than not that the defective nature of the lawnmower, and not something else, caused his injuries. If you find that Mr. A would have been injured even if the lawnmower was not defective, ABC Manufacturing, Inc. is not responsible for Mr. A’s injuries.
Legal Version: Duty as to Product Design A manufacturer of a product has a duty to use ordinary care in the design of the product so that it will be reasonably safe for the use for which it is intended or which can reasonably be anticipated. In exercising this duty, ordinary care must be exercised by the manufacturer to design the product in such a way that the product is reasonably safe for the ordinary consumer who possesses knowledge common to the community as to the product’s characteristics. Failure to fulfill this duty constitutes negligence. You may consider evidence of an alternative design in your determination of this issue, but it is not required to prove a design defect. Likewise, the fact that a hazard is open and obvious or has been warned against are also factors to be considered in analyzing whether a product is defective or dangerous. If a product was at the time of manufacture in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design or performance, the product is not defective by reason of design or performance, unless the plaintiff proves that a reasonably prudent manufacturer, could and would have taken additional precautions to design the product so as to be reasonably safe for the ordinary consumer who possesses knowledge common to the community as to the product’s characteristics.
Plain English Version:
ABC Manufacturing must use ordinary care in designing its products so people who are using its products in the manner intended will not get hurt. You may consider warnings on the product or hazards that are obvious in determining if ABC Manufacturing took proper care in designing the highchair in this case. If you find that the highchair met industry standards, it is not defective unless Mrs. B proves a reasonable manufacturer could have and would have taken additional precautions.
Legal Version: Causation
As to the requirement that Plaintiff’s injury be caused by a Defendant’s conduct, I do not mean that the law recognizes only one cause of any injury, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things may operate at the same time, either independently or together, to cause injury or damage. You should resolve this question by deciding whether Plaintiff would probably not have suffered the claimed injuries in the absence of a Defendant’s conduct. If Plaintiff probably would have suffered those injuries regardless of what Defendant did, then you must conclude that the injuries were not caused by the Defendant. If, on the other hand, Plaintiff probably would not have suffered the claimed injuries in the absence of a Defendant’s conduct, then you must conclude that Defendant’s conduct did play a part in Plaintiff’s injury.
Plain English Version:
More than one thing can cause an injury. You must decide whether Mr. C would still have been hurt regardless of ABC Manufacturing, Inc.’s conduct. If you find that Mr. C would have been hurt anyway, ABC Manufacturing, Inc. did not cause Mr. C’s injury and cannot be held responsible. On the other hand, if you find that Mr. C would not have been hurt but for ABC’s conduct, then you should find in favor of Mr. C.
IV. Getting the Most Out of Your Instructions Throughout Your Case
One final thought: Jury instructions are usually one of the very last tasks to be completed before a case goes to trial. Writing your jury instructions early, however, can be beneficial. Written early, as discovery and depositions are just beginning, jury instructions can serve as your road map to guide you through your case (just as they will later guide the jury). You can use them to tailor discovery requests to the plaintiff or co-defendants, thus making sure you have gotten discovery on all relevant claims and defenses. You can use them as an outline for depositions to be taken in the case. You can even test comprehensibility of statements of law during the depositions of your lay witnesses. You can also use the instructions when drafting your client’s dispositive motion. The bulk of the law you will rely upon will already be laid out in your instructions and you can simply include this law in your motion and then apply your facts. A complete set of jury instructions, with your facts as an overlay, can also assist in developing a trial theme. Finally, if you have your instructions mostly complete before your trial begins, you can use excerpts from your instructions during voir dire to help empanel your jury. Start introducing your potential jurors to the law you are going to be asking them to apply as early as possible. Doing so can only help with comprehensibility in the end.
Laurie K. Miller is Of Counsel with Ellis & Winters, LLP in Raleigh, North Carolina. Her primary practice areas include products liability, drug and medical device litigation, medical professional liability, and commercial litigation. Ms. Miller has devoted a substantial portion of her practice to mass litigation, multi-district litigation and class actions. She is currently serving as the Second Vice-Chair of the Young Lawyers Committee.