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New instructions for jurors

LAW REVIEW, Jim Porter

If you ever sat as a juror, at the end of the case the judge read you jury instructions. Jury instructions are a brief recital of California law – used by the jury to reach a verdict like “guilty or not guilty” or “$20 million for the plaintiff”, or a plaintiff’s worst nightmare “judgment for the defense.”

The instructions come out of the time-honored Book of Approved Jury Instructions (BAJI). BAJI is god-like in jury trials.

Only one problem.

The BAJI instructions were written in the 1930s and are filled with confusing legalese (to be redundant). They are almost impossible for normal folks to understand. Lawyers being non-normal.

So years ago the California Jury Instruction Task Force was formed to re-do jury instructions – into plain English. What a novel idea. They wrote new California Jury Instructions (CAJI) to replace the difficult to understand BAJI.

Here’s what the CAJI Task Force had to say about the old BAJI instructions, which is pretty clever: “BAJIs? We don’t need no stinkin’ BAJIs!”

Here’s an example of why plain English jury instructions are long overdue. In civil cases a plaintiff wins if he can prove his case by “a preponderance of the evidence.” Studies have shown that many jurors don’t know what that means. After reading the time-honored “preponderance of the evidence” BAJI instruction to jurors you may agree: “Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the essential elements of the claim which are duly forth elsewhere in these instructions. In addition to these essential elements, plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the nature and extent of the damages claimed to have been suffered, the elements of plaintiff’s damage and the amount thereof.”

If you understand that, you must be a lawyer. I can’t. Jury surveys show that most jurors think “preponderance of the evidence” means a slow, careful pondering of the evidence, which is logical but wrong.

The new CAJI instructions use normal English. Compare the CAJI “preponderance of the evidence” instruction titled Obligation to Prove – More Likely True Than Not True. “When I [the Judge] tell you that a party must prove something, I mean that the party must persuade you, by the evidence presented in court, that what he or she is trying to prove is more likely to be true than not true. This is sometimes referred to as “the burden of proof.” After weighing all of the evidence, if you can’t decide whether a party has satisfied the burden of proof, you must conclude that the party did not prove that fact. You should consider all of the evidence that applies to that fact no matter which party produced the evidence.”

Actually that seems only a little less confusing than the old BAJI instruction.

For another comparison, here’s the older BAJI instruction for The Right to Assume Others Good Conduct: “Every person who is exercising ordinary care has the right to assume that every other person will perform his duty and obey the law. In the absence of reasonable cause for thinking otherwise, it is not negligence for a person to fail to anticipate an accident which can occur only as a result of violation or duty by another person”.

I have no idea what that means and you can bet most jurors don’t either.

Here’s the comparable CAJI instruction titled Reliance on Good Conduct of Others: “Every person has a right to expect that every person will use reasonable care and will not violate the law, unless he or she knows, or should know, that the other person will not use reasonable care or will violate the law.”

I have no idea what that means either, but it seems a little better.

One thing I do know is this column started with a solid premise but worked into boredom. The bottom line is there has been a good change in the law. Juries will now be given instructions from the judge that they can understand, or at least instructions that are a little easier to understand than the garbled legalese instructions of the past.

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at porter@portersimon.com or at the firm’s Web site

http://www.portersimon.com.


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