California Bar Journal
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New jury instructions: they're in your interest
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A new era in jury instructions in California will begin next year when an entirely new set of civil jury instructions will be presented to the legal community, marking the culmination of a seven-year project to write new instructions in plain English.

They are dramatically different from the system that began in early England, when people who knew the facts of a case were required to participate as jurors. After a case was presented to them, they were given neither bread nor water until they reached a verdict. Jurors were subject to a writ of attaint if they made the "wrong" decision. Despite these somewhat onerous conditions, judges did not instruct the jury on the law: that was thought to be improper.

By the 19th century, judges in this country began instructing juries on the law, drawing their instructions from appellate court opinions. In the 20th century, the need for pattern instructions, those used repeatedly in similar cases, became apparent. In this, as in so many things, California became the leader. Starting in the 1930s, judges of the Los Angeles Superior Court drafted pattern civil instructions that came to be known as BAJI (Book of Approved Jury Instructions).

BAJI became so well accepted that every trial lawyer had to have a copy on his or her shelf. Through the years, however, it became apparent that our familiar jury instructions were not communicating to juries in as effective a fashion as we would hope. Anecdotally, trial lawyers have horror stories of how poorly jurors understand their instructions. Tests have shown that we are failing to achieve effective communication and studies demonstrate the problems with our legal jargon.

When tested on legal phrases, Washington, D.C., jurors showed limited understanding of our familiar terms. More than half could not define "speculate" and the same percentage thought that "preponderance of the evidence" meant "a slow, careful pondering of the evidence." In Florida, a group of people was read 20 minutes of pattern jury instructions and then tested with true-false or multiple choice questions. These prospective jurors showed a total lack of understanding of the most basic principles of our system.

Primarily, it is the language that creates the problem. Jury instructions have tracked the language of the appellate courts and are complex, ponderous and subject to special meaning. To use the overworked phrase, instructions are written in legalese. The problem is exacerbated by the increasingly complex matters we expect juries to deal with. It is generally accepted that the more complex the subject matter, the greater the need for simple language to explain the subject. Thus, it is fair to say that there is a greater need for clarity today than ever before.

One of the byproducts of a celebrated Los Angeles double murder trial was the creation of the Blue Ribbon Commission on Jury System Improvement, which recommended that a task force draft both civil and criminal jury instructions that accurately state the law and are understandable to the jury. Presently, that task force has more than 500 civil instructions in final form or nearing completion, and the criminal jury instruction group will present its final recommendations six to 12 months later.

The task force's job has been daunting, to say the least. It is difficult to explain the law to lay people in short, simple words. Trial judges cannot simply say to the jury, "Hey, man, do justice. Do the right thing!" We must use appropriate words that are legally correct. Our objective is clarity. 

By 2003, the civil instructions will be presented to the Judicial Council for its imprimatur and ultimately will be available both in book and electronic form. They will be part of the public domain. We are on the home stretch of this important project, but we still need your help. Hundreds of California lawyers already have provided extensive comments on our drafts. We anticipate two additional releases for public input. Please continue to help us with your comments.

Justice James D. Ward of the 4th District Court of Appeal is co-chair of the Task Force on Jury Instructions, where he heads the effort to revise civil jury instructions.