We attorneys all too often take for granted that juries at the end of a long and difficult case will understand and digest complex legal instructions given to them for the first time. That assumption MIGHT be true if jury instructions were written in plain English, and not in "legalese." Some instructions are acceptable and easily understood, but many are not, and it's not fair to ask juries to understand confusing and foreign instructions thrown at them for the first (and last) time.
I was researching a few years ago and came across a project in Iowa where that state's judges and attorneys sat down and re-wrote all instructions of law given to juries, in both criminal and civil cases, in plain English. Inspired by that Hurculean effort, I wrote the article below for Ohio Lawyer Magazine. My hope was that the article would be a tiny spark to nudge Ohio to follow suit. Guess what? Nothing happened. So much for that idea. I still think the idea's a good one, though. After all, we ask alot of juries, and they sacrifice alot to participate in one of the most cherished rights we enjoy as Americans. Is it asking too much to cut out some of the fat and verbiage from many of these instructions so juries can do their job better?
Below is the article on jury instruction reform..........
OHIO LAWYER MAGAZINE 2004 JANUARY/FEBRUARY
Looking through the lens of the jury: Jury instruction reform
The famous observer of America, Alexis de Tocqueville, wrote:
The jury … may be regarded as a gratuitous public school, ever open, in which every juror learns his rights … and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties …. I look upon the [jury] as one of the most efficacious means for the education of the people which society can employ.1
De Tocqueville never had to decipher pages of jury instructions on a Friday afternoon at the end of a week-long jury trial.
Jury instructions can be likened to a product assembly manual. They are the guide by which a jury constructs all the pieces (the evidence) in an attempt to assemble a just and fair decision. No doubt we have all experienced the frustrating process of assembling a product based on "easy instructions," only to be perplexed and frustrated by nonsensical instructions and leftover parts.
Similarly, the cardinal importance of jury instructions to a jury’s decision-making process cannot be denied. We all have witnessed the frequent questions jurors ask about particular words or phrases contained in the instructions and their meanings. More often than not, a jury will read and reread the instructions when given a copy to take back to the jury room. Indeed, jury instructions are so fundamental to Ohio civil jurisprudence that jurors are deemed to have understood and followed the instructions given to them.2
The unfortunate reality, however, is that the judicial "presumption of understanding" accorded to jury instructions is often little more than legal fiction.
Over the last two decades, the perceived competence of civil juries has been scrutinized, criticized and even attacked. Criticism of juror intellectual capacity has led to a number of proposed reforms aimed at eliminating juries altogether, to replacing them with blue ribbon panels or special masters. Attacks on juries’ collective integrity and the quality of their verdicts have also spawned clarion calls for reform. Legal reform issues aside, there is ample social science data that confusing or incomprehensible jury instructions impede juror decision-making.3
Ironically, perhaps what has gained more favor than replacing juries is helping them comprehend the legal rules that are supposed to govern their verdicts. Many states have been at the forefront of infusing their standard civil instructions with the much-needed oxygen of plain language. For instance, in 1995, Arizona enacted broad-based "jury reform," which included a plain-English overhaul of civil jury instructions.4 In fact, Arizona’s Civil Jury Instruction Committee includes a linguistics professor to advise the committee on easy-to-use versions of standard instructions.
But perhaps no state has been a bigger trailblazer in creating easy to use jury instructions than Iowa. In 1986, the Special Committee on Uniform Court Instructions of the Iowa State Bar Association completed a plain-English redraft of the Iowa Civil Jury Instructions. The Iowa Supreme Court, on reviewing the redraft, aptly noted:
It is readily apparent that juries will better understand legal principles explained by the instructions under the Plain English Redraft. The quality of justice will be improved. The bench, the bar, and, especially, the public, will benefit from the Committee’s work in producing the Plain English Redraft.
The committee noted that "the purpose of jury instructions is to give the law to the jury in a language they can understand," and surmised that the best way to do this was "to write jury instructions in plain English." To help achieve this goal, it hired a linguist to help translate "legalese" into plain English.
The general guidelines for drafting jury instructions followed by the Iowa Committee are that "each instruction shall be: an accurate statement of the law; as brief and concise as practicable; understandable to the average juror; and neutral, unslanted and free of argument."
The specific guidelines for drafting plain-English jury instructions are as follows:
• Use plain English, simple, short and concrete words.
• Make it look and sound like talk.
• Use short sentences.
• Use short paragraphs.
• Omit unnecessary words.
• Use active voice rather than passive.
• Avoid negative forms, and especially double negatives.
• Use personal pronouns, "I" for the judge and "you" for the jury.
• Whenever possible, leave out the words "as to," "determine," "facilitate," "herein," "hereof," "however," "if any," "therefrom," "theretofore," "thereof," "otherwise," "require," "that," "the," "whether" and "which."
• Replace "locate" with "find"; "prior to" with "before"; "sufficient" with "enough"; "in the event that" with "if."
• Put prepositions at the end whenever it sounds right to do so.
• Use sex neutral language. Eliminate the pronoun; repeat the noun; use a synonym for the noun; change the pronoun to "the," "a," "this" and the like; use "one"; use "it"; use the imperative; reword; and use the passive (the last resort).
• Where appropriate for clarity and ease of understanding, use lay language in place of exact case or statutory language so long as an accurate statement of the law is maintained.
Comparing apples to apples
Contrast Ohio’s medical negligence instruction to Iowa’s plain-English instructions. The standard "nonspecialist" medical negligence charge is based on the seminal case of Bruni v. Tatsumi:
The existence of a physician-patient relationship imposes on the physician the duty to act as would a physician of ordinary skill, care and diligence under like or similar conditions or circumstances. The standard of care is to do those things which such a physician would do and refrain from doing those things which such a physician would not do. If you find by the greater weight of the evidence that defendant failed to use that standard of care, then you may find he was negligent.5
Compare the 87-word Bruni charge to Iowa’s 28-word charge:
A physician must use the degree of skill, care and learning ordinarily possessed and exercised by other physicians in similar circumstances. A violation of this duty is negligence.
Iowa’s standard charge is not materially different in substance from Ohio’s Bruni charge. But, linguistically speaking, the difference between Iowa’s instruction and Ohio’s is the difference between lightning and a lightning bug. What is different is that the Iowa charge is free of repetition and excess verbiage. Trimmed of its grammatical fat, it provides a shining example of a plain-English instruction that is understandable, yet legally accurate.
The "specialist" charge is equally pristine and streamlined and is substantively no different than Ohio’s specialist charge. Below is Ohio’s version:
A specialist is a physician who holds himself out as specially trained, skilled and qualified in a particular branch of medicine. The standard of care for a physician in the practice of specialty is that of a reasonable specialist practicing medicine in that same specialty, regardless of where he/she practices. A specialist in any one branch has the same standard of care as all other physicians in that branch. If you find by the greater weight of the evidence that defendant failed to use that standard of care, then you may find that he/she was negligent.
Now Iowa’s specialist charge:
Physicians who hold themselves out as specialists must use the degree of skill, care and learning ordinarily possessed and exercised by specialists in similar circumstances, not merely the average skill and care of a general practitioner. A violation of this duty is negligence.
Again, it would be difficult to argue that the Iowa specialist charge is substantively different from Ohio’s.
Iowa’s overhaul of its civil instructions was not limited to medical negligence issues. Every civil instruction was simplified. For example, the instruction on preponderance of the evidence provides:
Whenever a party must prove something they must do so by the preponderance of the evidence.
Preponderance of the evidence is evidence that is more convincing than opposing evidence. Preponderance of the evidence does not depend upon the number of witnesses testifying on one side or another.
Compare Ohio’s preponderance instructions:
Preponderance of the evidence is the greater weight of the evidence; that is, evidence that you believe because it outweighs or overbalances in your mind the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, or of greater probative value. It is the quality of the evidence that must be weighed. Quality may, or may not, be identical with (quantity) (the greater number of witnesses).
In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence, regardless of who produced it.
If the weight of the evidence is equally balanced, or if you are unable to determine which side of an issue has the preponderance, the party who has the burden of proof has not established such issue by a preponderance of the evidence.
Although both are acceptable, the brevity and clarity of Iowa’s charge clearly distinguishes it as more understandable and easy to use.6
In essence, Iowa performed major surgery on its pattern jury instructions, and the result is obvious: Plain English can exist in perfect harmony with legal accuracy.
States adopting plain-English instructions have recognized an unintended consequence that has plagued traditional use of "pattern" jury instructions: The laudable goal of legal accuracy has inflicted collateral damage to the syntax, grammar and in the end, basic comprehension of instructions. This is understandable. Historically, the labor of pattern jury instruction committees has been devoted, for good reason, to ensuring that instructions are legally accurate for purposes of both trial fairness and appellate review. This approach has proven to be a mixed bag, however:
The primary goals of pattern jury instructions are to increase the legal accuracy of instructions and thereby avoid reversals, eliminate argumentative language, save time, and, finally, improve juror comprehension and instructions. Pattern instruction committees have been, for the most part, successful in achieving some of these goals, particularly a reduction in the number of appeals or reversals based on inaccurate instructions. They have generally failed, however, in their efforts to improve juror comprehension.
There are several reasons for this failure. Pattern instructions are often taken directly from the language of Appellate Court opinions or statutes, written for legal audiences rather than lay jurors. Even instructions drafted with juror comprehension in mind still contain complicated legal terminology, due to the fact that committees are made up of lawyers and judges who often do not realize that certain language is confusing and unfamiliar to those outside the legal profession ….7
In a 1965 speech that can only be considered visionary in retrospect, Federal District Judge Edward J. Devitt recognized these shortcomings:
Instructions should be phrased in clear, concise language applicable to the case. Sometimes counsel will quote verbatim from an Appellate Court decision dwelling on a point involved in the trial and urge it as a proposed instruction. Appellate Court opinions are written for a purpose different from that for which jury instructions are designed. The point of law may be controlling, but not the language. It is the legal principle, not the words expressing it, which is pertinent and which will be helpful to the jury. Legal points from decided cases should be couched in language appropriate to the facts and to the parties in the lawsuit.
The use of legal terminology in instructions should be avoided as much as possible …. To the extent possible, we should use that which Chief Judge Alfred Murrah calls the ‘common speech of man.’8
A few examples illustrate the tug and pull between drafting legally accurate instructions and making them understandable to lay persons. Consider the term "ordinary negligence," a term lawyers and judges would use freely without thinking twice about its import. Is all negligence "ordinary"? What if a jury considers the negligence to be "extraordinary"? Is extraordinary negligence counted as negligence? Is this term confusing or unnecessary? Apparently the North Dakota State Pattern Jury Committee believed so, for it moved to excise the term "ordinary" from its working definition of negligence after debating the issue.9 While the committee should be commended for removing this confusion, it is akin to killing one termite when a more potent insecticide is called for.
Similarly, what is meant by the phrase "physician of ordinary skill" in the standard Ohio medical negligence charge? What if the defendant physician possesses "extraordinary" skill in his or her profession? Can he or she never be negligent if, the "standard of care" refers simply to physicians of "ordinary" skill? Could the instruction be interpreted in this manner by a group of strangers who hear these words for the first time?
The reality is that jurors may well have difficulty understanding these concepts, and "unfortunately, judges sometimes assume that the words are part of ordinary speech when in fact they are technical terms with a legal meaning unknown to the lay public."10
If lawyers and judges can debate and pick apart the meaning and relevance of these terms of art, how can a jury be expected to understand and correctly apply such unfamiliar phrases? The larger point here is that jury instructions form the intersection between law and facts. The premise of the plain-English language reform movement is that legally accurate instructions do not make for a safe intersection merely because they are legally accurate.
Serious consideration should be given to adopting Iowa’s plain-language instructions to the extent they comport with Ohio law. Admittedly, this is no small undertaking. Any proposed revisions should ideally include a linguist who can advise on plain-English phraseology. But the good news is that much of this fertile ground has been already plowed by other states.
In no way should adopting plain-language instructions be considered a dismantling of present instructions. Rather, plain language revisions should be considered as fortifying the sound foundation of previous pattern instruction committees by adopting an easy-to-use version of previous instructions.
But the time has come for change in Ohio. How many times have we as lawyers been told, lectured or even scolded to "keep it simple," "be brief," or "get to the point" when examining witnesses, giving final arguments or writing appellate briefs? Shouldn’t the same considerations of simplicity, brevity and clarity apply with equal force to jury instructions?
It is a little known fact that buried in Volume One of "Ohio Jury Instructions" is Section 1.83, which discusses the necessity of using "direct and simple English" in jury instructions. It even quotes a Supreme Court of Ohio opinion discussing the importance of well-crafted, understandable instructions:
It must be remembered that juries are composed of ordinary men and women, not trained grammarians, and that fine distinctions in the meaning of words or phrases are not ordinarily recognized by the average layperson. Thus, in considering the propriety of any instruction, the meaning of the words used in the instruction must be thought of in their common meaning to the layperson and not what such words mean to the grammarian or the trained legal mind.11
It is time we took this admonition to heart. In the final analysis, the jury is the ultimate audience of the instructions written and edited by the judge and counsel. Unless we provide them with understandable tools to construct justice, it is analogous to a movie that is lauded by the critics but bombs at the box office.
Brian R. Wilson is a lawyer in Canton.
1Democracy in America 295-296.
2Pang v. Minch, 53 Ohio St.3d 186 (1990).
3Strawn and Buchanan, "Jury Confusion: A Threat To Justice," 59 Judicature 478 (1976); R. Hastoe, S. Penrod, and N. Pennington, "Inside the Jury" (1983); Walter W. Steele Jr. and Elizabeth G. Thornburg, "Jury Instructions: A Persistent Failure to Communicate," 67 North Carolina L. Rev. 77 (1988); Elizabeth Chilton and Patricia Henley, "Jury Instructions: Helping Jurors Understand the Evidence and the Law," Public Law Research Institute (1996). The authors noted research studies from Florida, California and Michigan involving mock juries that were presented with both ordinary "pattern instructions" and rewritten, plain-English instructions. According to the authors, juror comprehension dramatically increased with the rewritten instructions.
4In 1996, California established a task force on jury reform that included a committee of lawyers, judges, linguistics professors and lay people to draft jury instructions that were understandable to jurors. See P. Tiersma, "The Rocky Road to Legal Reform: Improving the Language of Jury Instructions" (February 2001).
546 Ohio St.2d 127 (1976).
6The California Task Force opted to avoid the term "preponderance" altogether and proposed informing the jury to decide an issue as "more likely than not." Tiersma, The Rocky Road, at 33.
7Chilton and Henley, supra, at 14-15.
8Speech delivered at the 10th Circuit Judicial Conference on July 9, 1965.
9North Dakota Pattern Jury Instruction Commission, October 2000 meeting minutes.
10Tiersma, supra, at 32. He notes that legal homonyms such as "brief," "burglary," "mayhem," "complaint," "aggravation" and others are "potentially dangerous because a lay person may think he knows what it means, whereas in reality the term may mean something quite different in the law."
11Bahm v. Pittsburgh and Lake Erie R. Co., 6 Ohio St.2d 192, 194 (1996).