Say What?!

1. <?xml version="1.0"?><AllQuestions /> <?xml version="1.0"?><AllResponses /> <?xml version="1.0"?><Settings><answerBulletFormat>Numeric</answerBulletFormat><answerNowAutoInsert>No</answerNowAutoInsert><answerNowStyle>Explosion</answerNowStyle><answerNowText>Answer Now</answerNowText><chartColors>Use PowerPoint Color Scheme</chartColors><chartType>Horizontal</chartType><correctAnswerIndicator>Checkmark</correctAnswerIndicator><countdownAutoInsert>No</countdownAutoInsert><countdownSeconds>10</countdownSeconds><countdownSound>TicToc.wav</countdownSound><countdownStyle>Box</countdownStyle><gridAutoInsert>No</gridAutoInsert><gridFillStyle>Answered</gridFillStyle><gridFillColor>255,255,0</gridFillColor><gridOpacity>50%</gridOpacity><gridTextStyle>Keypad #</gridTextStyle><inputSource>Response Devices</inputSource><multipleResponseDivisor># of Responses</multipleResponseDivisor><participantsLeaderBoard>5</participantsLeaderBoard><percentageDecimalPlaces>0</percentageDecimalPlaces><responseCounterAutoInsert>No</responseCounterAutoInsert><responseCounterStyle>Oval</responseCounterStyle><responseCounterDisplayValue># of Votes Received</responseCounterDisplayValue><insertObjectUsingColor>Red</insertObjectUsingColor><showResults>Yes</showResults><teamColors>Use PowerPoint Color Scheme</teamColors><teamIdentificationType>None</teamIdentificationType><teamScoringType>Voting pads only</teamScoringType><teamScoringDecimalPlaces>1</teamScoringDecimalPlaces><teamIdentificationItem></teamIdentificationItem><teamsLeaderBoard>5</teamsLeaderBoard><teamName1></teamName1><teamName2></teamName2><teamName3></teamName3><teamName4></teamName4><teamName5></teamName5><teamName6></teamName6><teamName7></teamName7><teamName8></teamName8><teamName9></teamName9><teamName10></teamName10><showControlBar>All Slides</showControlBar><defaultCorrectPointValue>0</defaultCorrectPointValue><defaultIncorrectPointValue>0</defaultIncorrectPointValue><chartColor1>187,224,227</chartColor1><chartColor2>51,51,153</chartColor2><chartColor3>0,153,153</chartColor3><chartColor4>153,204,0</chartColor4><chartColor5>128,128,128</chartColor5><chartColor6>0,0,0</chartColor6><chartColor7>0,102,204</chartColor7><chartColor8>204,204,255</chartColor8><chartColor9>255,0,0</chartColor9><chartColor10>255,255,0</chartColor10><teamColor1>187,224,227</teamColor1><teamColor2>51,51,153</teamColor2><teamColor3>0,153,153</teamColor3><teamColor4>153,204,0</teamColor4><teamColor5>128,128,128</teamColor5><teamColor6>0,0,0</teamColor6><teamColor7>0,102,204</teamColor7><teamColor8>204,204,255</teamColor8><teamColor9>255,0,0</teamColor9><teamColor10>255,255,0</teamColor10><displayAnswerImagesDuringVote>Yes</displayAnswerImagesDuringVote><displayAnswerImagesWithResponses>Yes</displayAnswerImagesWithResponses><displayAnswerTextDuringVote>Yes</displayAnswerTextDuringVote><displayAnswerTextWithResponses>Yes</displayAnswerTextWithResponses><questionSlideID></questionSlideID><controlBarState>Expanded</controlBarState><isGridColorKnownColor>True</isGridColorKnownColor><gridColorName>Yellow</gridColorName></Settings> <?xml version="1.0"?><AllAnswers /> Say What?! The Brand New Plain English Civil Jury Instructions (Life After Proximate Cause)

2. Hon. Melissa S. May, ModeratorIndiana Court of Appeals Hon. John R. Pera Chair of the Civil Instructions Committee Lake Superior Court, Civil #6 Hon. Nancy Eshcoff Boyer Allen Superior Court Hon. Carl A. Heldt Vanderburgh Circuit Court Julie C.S. McDonald Indiana Judicial Center

3. Welcome • LexisNexis Representative • Indiana State Bar Association Representative • Video

4. Three Questions • Why Plain English? • How to “Do” Plain English? • What Is in the New Plain English Instructions?

5. Preliminary Information • Before answering those three questions, some preliminary information: • The Civil Jury Instructions are created by a committee of the Indiana Judges Association (IJA), NOT the Indiana Supreme Court. • The IJA has published the Civil Jury Instructions exclusively through Lexis or its predecessors since the first patterns were drafted, 45 years ago.

6. Preliminary Information • More preliminary information . . . • The Indiana Supreme Court does not approve the instructions before they are published. • The instructions are discretionary. • The preferred practice is to use the pattern instructions. • This same preference applies to the new model instructions.

7. Why?

8. Why? • Jurors complain that they can’t understand legal jargon. • But at least it’s mostly in English! • In England, from the 11th Century, much legal language was in French or Latin. • In 1362, the Statute of Pleading said that parties to a lawsuit “have no Knowledge or Understanding of that which is said for them or against them.” • It was not until 1731 that the use of “Law French” was permanently outlawed.

9. Why Plain English Instructions? • Evolutionary Process • From “Law French” to Olde English to Plain English • Part of Overall Jury Reform • Giving jurors copies of the instructions • Permitting jurors to ask questions • Permitting jurors to take notes • Increasing the scope, size, and diversity of the jury pool

10. Why? • The new instructions are recommended MODELS, not required rules. • Instructions are a work in progress • Consulted both sides of the fence for specialized areas of law, like products liability • Committee process involves compromise

11. Why? • Not changing the law, just how we communicate the law • Used legal terms in titles, not instruction language • With a few exceptions, the precise legal term can be less important than whether a jury understands the law and how to apply it

12. Why? • Plain Language Movement • Other States’ Plain English Revisions • Pennsylvania • California • Alaska • Delaware • Michigan • Missouri • North Dakota • Texas • Vermont • States in the Plain English Process • Arizona • Florida • Vermont • Washington

13. Why? • Purpose of Plain English • To use the simplest, most straightforward way to express an idea, • With the goal of increasing comprehension, compliance, and satisfaction with the jury process

14. Why? • Example • Lawyer: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney? • Witness: No, this is how I dress when I go to work.

15. Why? • The Committee researched several studies on jurors’ comprehension of jury instructions. Some results: • Preponderance of the evidence = a slow, careful pondering • Proximate case = approximate cause, or “it’s pretty close to the cause”

16. Why? • Analogies • Medical terminology example: Who understands this sentence? • Jury instructions make me so obtunded that I become ataxic and degenerate into emesis. • Jury instructions make me so confused that I stumble around and start vomiting. • Real life example: Following instructions to put together a grill.

19. Why? • Staying Current with the Law • Instructions provide up-to-date summaries of at least sixteen areas of substantive law, • from car accidents • to medical malpractice • to products liability • to defamation

20. Why? • Staying Current with the Law • E.g., Collateral Source: The Supreme Court just held that the former pattern instruction was confusing and should not be used in future trials. The Committee drafted a new instruction that clarifies what the jury is to do with collateral source evidence.

21. Why? • Looking Back • While new instructions are not meant to change the law (just how we communicate the law), • Sometimes the Committee tracked quotes used in recent cases back through time, • To determine the language of the original statement on which a more recent assertion is based. • This clarified deficiencies & undecided areas of the law.

22. Why? • Staying Current While Looking Back • When needed, judges and staff did extensive research for instruction language • Instructions also attempt to predict undecided areas of law • Commentary states reasons for all changes and educated guesses • E.g., Defamation

23. How?

24. How To “Do” Plain English? • General Organization • Disposition table • Derivation table • Appendix of removed instructions • With comments explaining the removal of each instruction

25. How? • Organization of Chapters • First: • Preliminary Instructions • General Instructions • Concluding Instructions • Then: General Damages Instructions • Next: Substantive Law Chapters • Finally: Verdict Forms

26. How?

27. How? • Organization Within Chapters • Substantive law chapters are more complete, by including: • applicable standards of care, and • other special instructions applicable to the topic area

28. How? • Organization Within Individual Instructions • Defamation, before the revisions: Separate instructions for: • Preponderance of the evidence • Clear and convincing evidence • Defamation • Per se or per quod • Actual malice • Reckless disregard • Type of damages (presumed or proved) • Defamation, after the revisions: Terms are embedded in instructions that are tailor-made for each type of defamation case.

29. How? • Consistency between chapters • Consistent definitions of reasonable care, greater weight of the evidence, etc. across all chapters, • Unless there is a specific legal reason for a difference.

30. How? • Procedures/process used • Not “dumbing down” • E.g., A federal district court judge in Indianapolis told a group of students that his first question in court was, “Pardon me, sir, but in which occupation do you . . . occupy yourself?” • The witness replied, “Do you mean what’s my job?”

31. How? • Expert advice on how to communicate with the jury • Remember the audience • Be conversational • Address the jury directly, and refer to yourself as “I” • Be as concrete as possible

32. How? • More expert advice . . . on vocabulary • Use familiar words • Avoid legal jargon • Avoid arcane words • Avoid homonyms • Use irreducible terms, when necessary • If you must use legal terms, define them

33. How? • Vocabulary examples • Mitigate = Minimize • Nuncupative = Oral • For the reason that = • Because • Demonstrate = • Show • Terminate = • End • On the part of = • By

34. How? • More expert advice . . . on sentence structure • Use short sentences • Use simple sentence patterns • Avoid multiple negation • Use modal verbs

35. How? • More expert advice . . . on sentence structure • Generally use active voice • Change this: “The testimony of an owner is to be considered.” • Into this: “Consider an owner’s testimony.” • Change this: “The tree was cut down by John.” • Into this: “John cut down the tree.” • When to use passive voice

36. How? • More expert advice . . . on organization • Use parallel structure for parallel ideas • Decide • Multiply • Return • Use lists or tabulations for complex items, such as multiple conditions or rules • Don’t instruct the jury about things they don’t need to know

37. What?

38. What the New Edition Contains • Format of New Edition: Easy to Use • Softcover book (not looseleaf) • Distribution and derivation tables • Purchase of book includes a CD

39. Using your mouse, place the cursor at the beginning of the text you want to copy. Hold down the left mouse button and scroll to the end of what you want to copy. Release the left mouse button. Press the right mouse button, and a menu will pop up. Scroll to “Copy,” and click on the word “Copy” with your left mouse button.

40. Open your word processing program. Place your cursor into the document where you want the copied text. Click the right mouse button, and menu will pop up. Scroll down to “Paste” and click on the word “Paste” using the left mouse button.

41. After pasting the document into your word processing program, replace bracketed words and phrases with concrete names and phrases. Also, decide whether to remove bracketed sentences that are optional, like the one at the bottom of the instruction, above.

42. Old v. New Instructions

43. What?: Direct and Circumstantial Evidence • OLD4.02 Direct Evidence -- Circumstantial Evidence -- Inference Direct evidence means evidence that directly proves a fact, without an inference, and which, if true, conclusively establishes that fact. Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts. It is not necessary that facts be proved by direct evidence. You may consider both direct evidence and circumstantial evidence as proof. • NEW305 Direct Evidence & Circumstantial Evidence The parties in this case may prove a fact by one of two types of evidence—direct evidence or circumstantial evidence. Direct evidence is direct proof of a fact. Circumstantial evidence is indirect proof of a fact. For example, direct evidence that an animal ran in the snow might be the testimony of someone who actually saw the animal run in the snow. On the other hand, circumstantial evidence that an animal ran in the snow might be the testimony of someone who only saw the animal’s tracks in the snow. It is not necessary that any fact be proved by direct evidence. You may consider both direct evidence and circumstantial evidence as proof.

44. What?: Preponderance • OLD 1.05 Burden of Proof-Preponderance of the Evidence When a party has the burden to prove an issue by a preponderance of the evidence, that means by a greater weight of the evidence. A greater number of witnesses testifying to a fact on one side or a greater quantity of evidence introduced on one side is not necessarily of the greater weight. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more probably true than not true. • NEW 509 Greater Weight of the Evidence (Preponderance of the Evidence) Evidence is of the greater weight if it convinces you most strongly of its truthfulness. In other words, it is evidence that convinces you that a fact is more probably true than not true. A greater number of witnesses testifying to a fact on one side or a greater quantity of evidence introduced on one side does not necessarily amount to the greater weight of the evidence.

45. What?: Mitigation • OLD 6.13 Duty to Mitigate - Fault The plaintiff must use reasonable care to minimize [his][her] damages. This is called mitigation of damages. If you find the plaintiff failed to use reasonable care to minimize any of the damages [he][she] alleges [he][she] has sustained and that failure was a proximate cause of any of the damages [he][she] claims, then such conduct would constitute fault to be assessed against the plaintiff. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff failed to use reasonable care to minimize [his][her] damages. • NEW 935 Duty to Minimize (Mitigate) Post-Injury in Comparative Fault Cases A plaintiff must use reasonable care to minimize [his][her] damages after [he][she] is [injured][harmed]. [Plaintiff] may not recover for any item of damage that [he][she] could have avoided through the use of reasonable care. [Defendant] has the burden of proving by the greater weight of the evidence that [plaintiff] failed to use reasonable care to minimize [his][her] damages. You should not consider failure to minimize damages as fault. Rather you may consider failure to minimize damages to reduce the amount of damages that [plaintiff] claims.

46. What? Proximate Cause • OLD5.06 Proximate Cause - Definition An act or omission is a proximate cause of an injury if the injury is a natural and probable consequence of the act or omission. • NEW 301 Responsible Cause (Proximate Cause)—Definition A person’s conduct is legally responsible for causing an injury if: (1) the injury would not have occurred without the conduct, and (2) the injury was a natural, probable, and foreseeable result of the conduct. This is called a “responsible cause.”

47. What?: Nuncupative Will • OLD27.17 Requirements of Due Execution- Nuncupative Will. In order to have a valid nuncupative will, the following requirements must be met: A person may make a nuncupative will disposing of part of his property when: (1) The person is in imminent peril of death, whether from illness or otherwise; and (2) The person dies as a result of the impending peril. In addition, the will must be: (3) Declared by the person as his will before two disinterested witnesses; (4) Written down, by or under the direction of one of the witnesses, within thirty days after the declaration; and (5) Submitted for probate within six months after the death of the person making the will. • NEW 3917 Requirements of Due Execution—Nuncupative (Oral) Will You must decide whether the oral will made by Mr. Goodman shortly before his death is a valid will. Mr. Goodman’s oral will is a valid will if: (1) Mr. Goodman was in imminent peril of death; (2) Mr. Goodman died as a result of that peril; (3) Mr. Goodman stated, before two disinterested witnesses, that the gift of property he wished to make was his will at that time; (4) one of the witnesses wrote down, or directed someone else to write down, Mr. Goodman’s statement within thirty days after Mr. Goodman made it; and (5) the written statement was submittedto the Court within six months after Mr. Goodman died.

48. What?: Res Ipsa Loquitur • OLD 9.13 Res Ipsa Loquitur A doctrine called res ipsa loquiturmay apply under certain conditions in a negligence case. For this doctrine to apply, the plaintiff must prove by a preponderance of the evidence the following: (1) The plaintiff was injured [damaged] as a proximate result of [here set out the occurrence, e.g., the falling chandelier]; (2) The [here set out the instrumentality, e.g., chandelier] was under the exclusive control of the defendant [defendant's agent]; and (3) The [here set out the occurrence, e.g., falling of the chandelier] usually would not happen unless the defendant [defendant's agent] was negligent. If all of these elements have been proved, then you may infer the defendant was negligent and you may consider this inference with all of the other evidence in the case in arriving at your verdict. • NEW 325 Res Ipsa Loquitur There are certain situations in which the nature of an incident and the circumstances surrounding it lead to the reasonable belief that it would not have occurred unless someone did not use reasonable care. If [plaintiff] proves all of the following by the greater weight of the evidence: (1) [plaintiff] was [injured][harmed][damaged] [as a result of][when] [here insert event which was a responsible cause of injury/damage/harm]; (2) only the [defendant][defendant's agent] controlled [insert name of instrumentality]; and  (3) under normal circumstances the [event][insert event] would not have occurred unless the [defendant][defendant's agent] was negligent, then you may infer that the incident resulted from [defendant]'s negligence. You may consider this inference with all of the other evidence in arriving at your verdict.

49. What?: Joint Duty of Health Care Providers • OLD 23.02 Joint Duty of Health Care Providers When two or more [health care providers] owe the same duty to a patient, and each contributes to the same breach of that duty, they are individually and jointly liable for the patient's [death] [injury]. • NEW 1519 Joint Duty of Health Care Providers Qualified Under the Medical Malpractice Act If you decide that [name of health care providers] were both medically negligent, and that their negligence contributed to the same injury, they are both liable for the entire amount of [plaintiff]'s damages.

50. What?: Attractive Nuisance • OLD 25.13 Attractive Nuisance-Injury to Trespassing Children When children trespass, the law recognizes that they may be incapable of understanding and appreciating all of the possible dangers that they may encounter when trespassing. The [owner] [occupant] of property owes trespassing children a duty of reasonable or ordinary care to protect them from some hidden dangers on the property to which they may be attracted. • NEW 1933 Attractive Nuisance Children may not understand or appreciate the dangers they may encounter when trespassing. [Owners][Occupants] of property must use ordinary and reasonable care to protect trespassing children from hidden dangers to which children may be attracted on their property.