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Plain English instructions are coming to juries

By Nancy McCarthy
Staff Writer

Eight hundred brand new jury instructions for use by California lawyers and judges in civil trials are expected to be approved by the Judicial Council this month, providing guidance to jurors in plain English instead of arcane legalese.

No longer will jurors hear: “Failure of recollection is common. Innocent misrecollection is not common.” Instead, they will be told: “People often forget things or make mistakes in what they remember.”

Nor will they hear the term “preponderance of the evidence,” or for that matter, the verb “preponderates.” Rather, they’ll be told that a lawyer will try to persuade the jury that something “is more likely to be true than not true. This is sometimes referred to as ‘the burden of proof.’”

Chief Justice Ronald George appointed the Task Force on Jury Instructions in 1997, with orders that it make instructions more understandable to jurors while accurately stating the law. Appellate Justice Carol Corrigan of San Francisco heads up the criminal subcommittee, whose revisions are probably two years away.

Appellate Justice James D. Ward

Appellate Justice James D. Ward of Riverside chaired the civil subcommittee, working with an 18-member group he described as “an accumulation of some of the brightest minds in California. They did an excellent job.”

A monumental undertaking for both groups, the project has consumed thousands of hours. In fact, Ward, who previously oversaw a complete rewrite of civil discovery laws, joked that the chief justice recently wondered if Ward is still speaking to him.

The new civil instructions were divided into four sets, each widely distributed for public comment beginning on a yearly basis in 2000. Ward said the response was “massive, much of it very, very good. They were learned, thoughtful responses.” As a result of the comments, the instructions underwent considerable fine-tuning.

For example, Ward said the committee struggled with a definition of “circumstantial evidence.” The current rule says, “Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.”

Rather than provide an equally convoluted explanation, the committee excised the term completely, substituting “indirect evidence” instead. However, the legal community felt that the words “circumstantial evidence” are so much a part of the common lexicon — understood or not — that they should be retained.

The new instruction therefore reads, “Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as ‘circumstantial evidence.’ In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.”

Ward said the compromise was both responsive to the legal community’s concerns and is easier to understand.

Jury instructions traditionally were written in the language of appellate opinions. “We don’t write them with a 10th grade audience in mind,” Ward said. “We write for people in the legal business. It was imperative that they be written better and by and large, everyone was saying this is something that needed fixing.”

The committee’s strictly informal tests indicated it succeeded in making the language simpler, Ward said.

A normal 10th grader, for instance, would not use the phrase “person of ordinary prudence,” nor would he talk about people whose “physical faculties are impaired,” as found in this instruction: “The amount of caution required of a person whose physical faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under circumstances similar to those shown by the evidence.”

On the other hand, that same 10th grader is likely to understand, “A person with a physical disability is required to use the amount of care that a reasonably careful person who has the same physical disability would use in the same situation.”

Once the new instructions are adopted, they’ll go to LexisNexis, the designated publisher, which is expected to put them online in the fall. Because the instructions are in the public domain, LexisNexis does not hold a copyright, but is expected to produce software to facilitate their implementation. Other publishers also can download the instructions for possible purchase as well.

The Los Angeles County Superior Court, which with West Publishing Co. publishes the Book of Approved Jury Instructions (BAJI) as a copyrighted project, has stopped supporting the endeavor. It continues to publish CALJIC, the book of criminal jury instructions.

Ward said he doesn’t know how many pages the new instructions will consume, but expects them to fill at least two volumes. BAJI offers 500 to 600 instructions and use notes, and the task force’s work includes expanded use notes in addition to more instructions.

The task force started from scratch and intentionally did not use BAJI as a basis for its work, wanting to avoid accusations of revising another institution’s product.

Nor are the new instructions the final word; the Judicial Council likely will appoint an advisory committee to monitor and maintain them in the future. “They’ll be constantly tinkered with and changed,” Ward said. “They won’t remain static.”

Appellate Justice James D. Ward of Riverside
(Click to Enlarge)

The Task Force on Jury Instructions received a special award last month from the Burton Foundation, an organization devoted to the art of legal writing. It was founded by William Burton, an advocate of plain language and author of Burton’s Legal Thesaurus. The awards are given to law firms and law schools, but the task force was singled out for its work in simplifying California’s jury instructions.

Out with the old

Current: ‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.

New: When I 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.’

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