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Helping jurors use jury instructions

By: dmc-admin//August 10, 2009//

Helping jurors use jury instructions

By: dmc-admin//August 10, 2009//

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When the deliberation room door closes and your jury finally gets to discuss the case, what do you think is their first order of business? Do they sit down and parse the verbiage of the jury instructions, analytically establishing the rules by which they must interpret the evidence?

Not likely.

Depending on the study you look at, jurors misunderstand jury instructions somewhere between 30 to 50 percent of the time. The longer your trial, the more likely that jurors will be confused about the instructions.

Jurors find comparative negligence and limiting instructions the hardest to understand. Limiting instructions which tell jurors they must do something or must ignore certain information are ineffective at best and can even backfire, causing jurors to focus more on the forbidden information or to do the opposite of what they are instructed to do.

And a judge’s nonverbal behavior in reading instructions can have a definite influence on the way jurors deliberate and decide cases.

Is there any good news? Jurors do seem to generally understand instructions in auto negligence, product liability and medical malpractice cases.

Additionally, many states have crafted simplified instructions that do seem to help juror comprehension.

Pre-instruction by the court seems to assist jurors in better understanding their role in relationship to the evidence. One interesting study indicates that jurors better understand jury instructions if they are given a physical copy of the instructions or are visually shown the instructions while they are being read by the judge.

What’s the problem?

So why don’t jurors understand instructions better?

Part of the problem is timing. At the beginning of the trial, jurors know they have an important job and want to do it well. We then inundate them with a massive amount of complicated evidence on a variety of subjects, usually outside their everyday experience.

Then, at the very end of the case, we tell them how they are supposed to interpret everything.

Unfortunately, the human mind does not work like that, especially when presented with obtuse contract language, standards of care, engineering or financial data and burdens of proof. The brain searches for meaning. It does not wait.

Jurors at the beginning of a case really want to know what their fundamental job is going to be. They want to know from the outset what they are supposed to do with all of the complicated material they will be hearing. And while jurors can understand that they will be looking at whether a defendant committed a crime or who was to blame for an accident, they have a harder time tuning their listening to anti-competitive business practices, breaches of fiduciary duty, deprivation of honest services or trademark infringement.

In order to make sense of it all, jurors rely on their common sense – something the judge actually encourages them to employ. One study found that liability judgments are not made on actual liability, but on a desire to compensate a plaintiff and/or punish a defendant. Using their “intuitive justice,” jurors decide what they feel is right and then find ways to justify their desired verdict within the confines of the instructions.

What to do

How should you deal with this problem?

First, starting thinking about your proposed instructions at the beginning of the case. Since we know that jurors have their own “common sense” rules that they apply to evidence, it’s best to find out what the jurors’ own internal instructions are in voir dire.

For example, some jurors think there should be higher level of proof in a civil case than a preponderance standard. A plaintiff might ask jurors if they would need more than a “tipping-of-the-scales” 51 percent to prove the case.

Prosecutors sometimes ask jurors whether they would need to find a defendant guilty beyond all doubt. And a remarkable number of jurors believe they would need to hear a criminal defendant testify and prove his or her innocence – some people simply believe that an innocent person would have nothing to hide.

For some of these jurors the jury instructions can cure their misconceptions. For others, their own internal rules will always be their default definitions. If you can get jurors to disclose in voir dire that these internal definitions will rule their decision-making, you may be able to successfully challenge them for cause.

More importantly, questioning on proposed instructions allows you to characterize the role of the jury during the trial and frame the significant issues in the case.

Since potential jurors are wondering at the beginning of a trial what they are supposed to decide, attorney-conducted voir dire, if allowed, is the perfect opportunity to establish what you consider to be the juror’s role.

As an example, a plaintiff might say in a products liability case, “One of your jobs will be to decide whether Acme Corporation’s Roadrunner Rocket contained a manufacturing defect. When you hear the term ‘manufacturing defect,’ what does that bring to your mind?”

Defense counsel in the same case might say, “One of your jobs will be to decide whether the plaintiff Wiley Coyote used or misused Acme’s Rocket. When you think about proper use or misuse of a product, what pops into your head?”

These questions establish the juror’s role and then get them to discuss what initial impressions and internal standards they might apply to the case.

Opening arguments

Although we often spend time in opening statements and witness examination telling the story of the case, we sometimes do not tie that story to the legal determination of why a driver was negligent or why an employer was justified in terminating an employee.

We need to start building the language of the instructions into the opening statements and witness examination. For example, defense attorneys representing an insurance company in bad faith litigation might use the word “reasonable” as often as possible to fit in with the instruction they will argue in closing arguments.

A plaintiff in a medical malpractice case could speak about the “high standard of medical care” during the trial. A criminal defense attorney might use the word “doubt” repeatedly in his or her cross-examination of prosecution witnesses.

This means that jurors are not hearing complicated instruction language prior to deliberations, but are getting a taste of what those instructions will cover. While you may not have the final wording of these instructions until closing arguments, building these concepts and language into the case early will lay a foundation for juror understanding. Without this foundation, instructions get relegated to a juror’s mental recycle bin.

By discovering juror definitions of key concepts in the law governing your case and laying a foundation to help the jury understand the instructions, you can better control the jury’s job description, focus and guidelines by which your case will be decided.

Richard Gabriel is President of Decision Analysis, a trial consulting company with offices in Los Angeles, Chicago, & San Francisco. He is co-author of Jury Selection: Strategy & Science, published by Thomson-West, and is a regular columnist on trial strategy for Lawyers USA. This article originally appeared in Lawyers USA, a sister publication of Wisconsin Law Journal.

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