Edited by Barbara Kate Repa
Category: Jury Practice
When I was a fairly new lawyer, still in love with the formal language of the law and liberally sprinkling that language with Latin, I sat as a judge pro tempore. While reading the instructions to the jurors, I saw for the first time the glazed expression in their eyes. It was then that I realized that we in the law could be much more effective if we spoke to others in plain language, without legalisms.
Now, 40 years later, I have had the opportunity to do something about this problem as part of a task force that Chief Justice Ronald M. George entrusted with creating civil jury instructions in plain English. The simplified instructions-the culmination of six years of work-represent the most comprehensive revision of jury instructions in California history.
The revision is long overdue. Beyond my personal observations, a substantial body of evidence has established that jury instructions used in this country were not effective, failing to explain the law clearly. Tests showed that they did not communicate adequately with people whose educational level is, on average, below that of judges and attorneys. Studies starkly showed the problems with using legal jargon. Washington, D.C., jurors recently tested on legal phrases showed limited understanding of terms familiar to lawyers. For example, more than half of the jurors could not define speculate. About a quarter selected the wrong answers for burden of proof, impeach, admissible evidence, and inference. Most tellingly, however, more than half thought that the phrase preponderance of the evidence meant a slow, careful, pondering of the evidence. Psycholinguistic studies demonstrate that comprehension improves when relatively common terms are used to define legal concepts. (Peter M. Tiersma, Reforming the Language of Jury Instructions, 22 Hofstra L. Rev. 37, 42-43.)
A Look at Jury History
Legal procedures resembling the jury system date back to Roman times-and a jurylike process was used in ancient legal systems in Europe. Although there is no precise date when the system was instituted in England, most scholars agree that the process began after the Norman Conquest in 1066. Judicial procedures brought from France, mixed with the indigenous customs, evolved into the jury system-a system in which the people made judicial determinations.
In its original form, a jury was quite different than it is today. People who knew the facts of the case were required to participate as jurors. After the case was presented to them, they were given neither bread nor water until they reached a verdict. Jurors were subject to punishment-including forfeiting their money and belongings, being imprisoned, having their houses razed, trees uprooted, and meadows plowed up-through a writ of attaint if they made the "wrong" decision. Despite these onerous conditions, judges did not instruct the jury on the law.
In the earliest jury trials in this country, judges simply discussed the case with jurors, instructing them in the process. Over time, instructing the jury became more formalized. In the 19th century, judges instructed juries by drawing from appellate opinions, and the process became complex and burdensome. In the 20th century, with the increase in the volume and complexity of litigation, pattern jury instructions-instructions used repeatedly in similar cases-were developed. California became a leader in implementing uniform jury instructions. In 1938, Judge William J. Palmer of the Los Angeles Superior Court drafted pattern civil instructions to be used in his court. Committees of the Los Angeles court were formed, and two sets of instructions came into being: civil instructions, known as the Book of Approved Jury Instructions (BAJI), and California Jury Instructions-Criminal (CALJIC).
The Plea for Plain English
By the 1990s many members of the legal community had become dissatisfied with the BAJI and CALJIC instructions, creating the impetus for a plain-English movement in the legal profession.
In California the particular problem with the pattern jury instructions was their use of language from appellate opinions and statutes, which are generally written for an audience of lawyers, not jurors. Using such language in jury instructions made them complex, ponderous, and subject to specialized meaning.
The problem of educating jurors in the law is exacerbated by other factors. Jurors today are required to deal with increasingly complex matters, and complexity demands greater clarity of explanation. California has a culturally diverse population, and for a large number of people English is their second language. Many of these people are now being called to jury duty because of new methods of tapping the jury pool. An ornate form of English simply does not communicate with these jurors.
A Task Force Takes on a Tough Task
In the mid-1990s, a Blue Ribbon Commission on Jury System Improvement was created, and it immediately noted that the jury instructions then in use were oftentimes impenetrable to the ordinary juror. The commission recommended that a task force be created to draft plain-English jury instructions that accurately state the law. From the beginning, there were actually two task forces, acting largely independently, one focusing on criminal instructions, the other on civil.
Initially, they set out simply to revise existing instructions, but copyright problems forced the drafters to start from scratch. This difficult process began with the staff attorneys of the Administrative Office of the Courts. They looked to many primary and secondary sources and examined instructions from states that had already developed plain-English instructions. Their drafts, submitted to subcommittees for further refinement, were given to the full task force, which then drafted by committee. Because of the varying viewpoints of the task force members, discussions concerning which words were most clear were often long and heated. The most heated debates-often lasting half a day-arose over discussions about the state of the law in several fields.
Experts in various legal fields-for instance, medical malpractice practitioners from the plaintiff and defense bars-were asked to review drafts of the instructions in their areas. In fields involving strong advocacy of opposing views, the goal was neutrality.
The instructions were also sent out for public comment through large mailings and by posting them on a website, and the extensive response from the bench and bar resulted in many additional revisions. Nineteen legal organizations in the state and hundreds of individual lawyers assisted in editing the instructions, a process monitored by an editorial staff that made technical corrections and maintained a consistent style.
The California Plain Language Civil Jury Instructions took effect on September 1, 2003. The criminal subcommittee of the task force anticipates that it will complete its work in 2005.
That Was Then, This Is Now
In revising the instructions, the task force was guided by plain-English principles: using the active voice, avoiding double negatives and legalese, and crafting shorter sentences. Legal concepts were simplified. And the goal-mostly attained-was to write the instructions at a tenth-grade reading level. Compare the following before-and-after jury instructions:
Former language Revised language
preponderance of the evidence more likely to be true than not true
circumstantial evidence indirect evidence
peculiar risk special risk
special employee temporary employee
express or implied by words or conduct
ostensible agent apparent agent
In the new instructions parties are referred to by name rather than their legal designations in the litigation, such as plaintiff or defendant. The burdens of proof for claims and affirmative defenses are included in the instructions, along with the specified elements. Affirmative defenses are clearly labeled so that neither the court nor counsel can be confused about the instructions' purpose.
Wherever possible, legal terms were omitted; their definitions were incorporated into the language of the instructions themselves. Decimal points were eliminated from the numbering system. For ease of understanding, listed elements are now preceded by numbers, and factors that a jury may consider in reaching a decision are designated by letters. Unnecessary instructions involving issues of law calling for a determination by the judge alone were axed. The number of references and authorities that provide the law on which the instructions are based were expanded.
Looking Back at BAJI
Examples of how the new instructions differ from BAJI demonstrate the value of plain English. BAJI 2.00 reads: "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."
The comparable plain-English instruction, CACI 202, 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."
Next, consider a signature example of the changes. BAJI 2.21 reads: "Failure of recollection is common. Innocent misrecollection is not uncommon." The revised comparable instruction on witnesses, CACI 107, reads: "People often forget things or make mistakes in what they remember."
BAJI 2.60 states: " '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."
The drafting task force questioned whether the average juror ever uses the noun preponderance-or the verb preponderates. The revised wording, in CACI 200, states: "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.' "
Finally, BAJI 6.00.2 reads: "A psychotherapist has no duty to warn third persons of a patient's threatened violent behavior, nor any duty to predict such behavior or to protect third persons from such behavior, unless the patient has communicated to the psychotherapist a serious threat of physical violence against [a] reasonably identifiable potential victim[s]. If a patient has communicated such a threat to a psychotherapist, the psychotherapist then has a duty to warn and to protect the reasonably identifiable potential victim[s]. If you find a psychotherapist had this duty, it is satisfied and there is no liability if the psychotherapist made reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency."
The comparable Judicial Council instruction, CACI 503, breaks the cause of action into clear elements and identifies the parties by name.
"[Name of plaintiff] claims that [name of defendant] was negligent because [he/she] did not warn [name of plaintiff] or a law enforcement agency about [name of third party]'s threat of violent behavior. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was a psychotherapist;
2. That [name of third party] was [name of defendant]'s patient;
3. That [name of third party] communicated a serious threat of physical violence to [name of defendant];
4. That [name of defendant] knew or should have known that [name of plaintiff] was [name of third party]'s intended victim; and
5. That [name of defendant] did not make reasonable efforts to warn [name
of plaintiff] and a law enforcement agency about the threat."
The task force drafted 799 new instructions, including an expansive set of verdict forms-188 in the first edition. This contrasts with approximately 600 instructions in BAJI. Topics such as antitrust, federal civil rights, lemon law, trespass and conversion, and the Family Leave Act were added. More additions are planned during the next two years-freeing judges and attorneys from the task of fashioning individual instructions on their own.
The Judicial Council has changed the Rules of Court to designate the new civil instructions as the approved instructions for California effective September 1, 2003. Rule 855(a) states: "The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California." Rule 855 also provides: "Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the civil jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors."
To Publish and Maintain
Lexis-Nexis, having succeeded in an open competition, is the official publisher of the instructions. It has published a two-volume set of the instructions and a software program, known as Hot Docs, to prepare and assemble the instructions-both of which are free for the courts and available for sale to all others.
The Judicial Council will maintain the instructions through staff in the Administrative Office of the Courts, which will share this responsibility with Lexis-Nexis. Changes and additions to the instructions will be supervised by a permanent advisory committee of the Judicial Council, consisting of 20 attorneys, judges, and academics throughout the state. The members will serve staggered three-year terms.
The new instructions, in the public domain and free to be copied, are available on the Internet at www.courtinfo.ca.gov/reference/4_34juryinst.htm.
The Advisory Committee on Civil Jury Instructions welcomes comments. Send written comments to:
Advisory Committee on Civil Jury Instructions c/o Administrative Office of the Courts, Office of General Counsel
455 Golden Gate Avenue
San Francisco, CA 94102-3588
Or comment by email at: email@example.com.
James D. Ward is an associate justice of the court of appeal in Riverside. He is vice chair of the Jury Instruction Task Force writing plain-English jury instructions for California and was chair of the civil subcommittee of the task force that recently completed the state's new civil instructions.