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Lawyers may love legalese, but jurors don’t. That fundamental observation is behind the soon-to-be finalized “plain-English” criminal jury instructions — part of California’s ongoing bid to improve communication between courts and jurors. Expected in mid-2005, they will come more than a year after the Golden State launched its plain-English civil jury instructions to mixed reactions from litigators. While some lawyers assert that they improve jurors’ comprehension, others think they are “dumbed down” and “wordy.” California stands alone, at least for now, as the only state to have written new criminal and civil instructions from scratch. Vermont should not be far behind. Attempts at clarifying and simplifying jury instructions have been very slowly spreading across the country in the last two decades. Arizona, Hawaii, Iowa, Michigan, Oregon, Pennsylvania and Wisconsin have all revised their civil instructions to varying degrees, according to the National Center for State Courts. Vermont, which had no standard instructions, is in the midst of drafting both criminal and civil instructions. Colorado and South Dakota appear likely to be next. Alaska was the first state to tackle the job about 20 years ago. Delaware had no pattern of civil instructions until it introduced its user-friendly ones in 1997. AVOIDING A ‘FOOL’S ERRAND’ While lawyers disagree on the success of the civil instructions, studies have found enormous upswings in jurors’ comprehension when they had the opportunity to use plain-language instructions, said Joseph Kimble, a professor at the Thomas M. Cooley Law School in Lansing, Mich. “Jury instructions directly impact people’s lives and freedom,” said Kimble, who assisted the Michigan Bar in its efforts to rewrite the state’s criminal jury instructions. “Jurors have a right to understand the law.” “They’re a great improvement,” said Riverside County Superior Court Judge Dallas Holmes, who was on California’s civil drafting subcommittee. “I haven’t had a single question [from a juror] as to what they mean since we started using them,” he said, noting that he handed out the instructions to each juror so that they could read along with him when he read them aloud. “Your heart used to sink when you got questions,” Holmes noted. “It’s a fool’s errand to answer them,” he added, referring to “every judge’s fear” of getting reversed for trying to explain the meaning of an instruction. The new instructions have eliminated double negatives and semicolons. The sentences are shorter, affirmative and in the active voice. The language is simpler — too simple for at least one lawyer. “They’re dumbed down,” said plaintiffs’ attorney William Weiss, a San Francisco solo practitioner who has been trying cases for 29 years. “I think they’re a little wordy and not as elegant or clear as the old ones.” Weiss added that the instructions hadn’t altered his trial strategy, and that he hadn’t seen any effects one way or another. The new instructions haven’t changed the way Eric Emanuels tries cases, either, but they feel more “comfortable” to him, he said. Emanuels, who is with the 12-lawyer firm Elie and Associates in Rancho Cordova, Calif., and who just won a defense verdict in a medical malpractice case, said “it’s hard enough for lawyers to learn the law — jurors are afraid of legalese … .They accomplished their purpose of making them easier to understand for a trier of fact. I like ‘em.” The motivations behind these reform movements are nearly identical: Get rid of the legalese. In legal literature, jury instructions are often described as pompous, dull, wordy, unclear, impenetrable and incomprehensible. An example of the old and new “burden of proof” California civil instruction illustrates the point: Old: “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.” New: “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.’” A COPYRIGHT ISSUE California worked from scratch because of the threat of a copyright infringement lawsuit by the Los Angeles County Superior Court. The court had written the original instructions and owned the copyright, which it licensed to West Publishing Co., said Justice James Ward of the California Court of Appeal, 4th District, who chaired the civil subcommittee. “It turned out to be much better for us — painting on blank canvas — not stuck with someone else’s words,” Ward said. “We were afraid at first to even look at the old ones.” The Los Angeles judiciary relented a few years into the process, he said. West still publishes the old instructions, but Ward said few judges were using them. The California Rules of Court encourage, but don’t require, use of the new instructions. But if a judge wants to use a different instruction, the rules require that the judge find that “it would more accurately state the law and be understood by jurors.” Michigan’s user-friendly criminal jury instructions were drafted by a state bar committee, which was not an arm of the court. “The Supreme Court had never formally adopted them,” said Michigan Circuit Judge William Caprathe, who chaired the drafting committee. “It’s voluntary — but everyone uses them because of the fear of being reversed.” NEED A ‘HOME RUN’ Fear of reversal has caused the criminal subcommittee in California to move cautiously. “We have to hit a home run — if we hit a triple, we’re in trouble,” said 1st District Court of Appeal Justice Carol Corrigan, the chairwoman of the Judicial Council Task Force on Jury Instructions and the chairwoman of the criminal subcommittee. “Very few civil trials are overturned for jury instructions.” That is not true of criminal cases. “We would like as humanly as possible to get them right.” To accomplish that, Corrigan said, the key is not to “challenge the balance of authority … .We are not a law review commission. We are trying to explain the law as it exists.” They have looked to statutes and their legislative history, to voter resolutions and to case law. The committee continues to struggle to “get right” some very complex instructions such as “factors to consider” in the sentencing phase of a capital case, which entails not only defining mitigating and aggravating circumstances, but also giving jurors guidance on how to weigh these factors.

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