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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.
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