A Better Orientation for Jury Instructions - Charles M. Cork, Iii

• Publication year: 2002

Special Contribution

A Better Orientation for Jury Instructionsby Charles M. Cork, III*

Research in the past thirty years confirms what judges and lawyers already knew: jurors often do not understand jury instructions, even pattern instructions developed by judges and lawyers with the goal of increasing juror understanding. Numerous articles have suggested methods for redrafting pattern instructions so they will be more comprehensible to jurors without legal training. This Article will survey some of this research, but the prime objective of this Article is to call for a different orientation to jury instructions.

Much of current practice conceives jury instruction as a miniature, accelerated education process¹ in which the judge lectures on one or more fields of law and the jurors are expected to assimilate the lecture into a coherent and correct understanding of the law. This will be called the "Lecture Approach." The goal of this process is that the jurors will understand all of the contours of legal doctrine reflecting on the legal dispute before them. The lawyers for each party will supply to the judge a series ofproposed jury instructions comprised of excerpts from reported decisions or statutory text, selected in a partisan manner, emphasizing language that is most favorable to the client's case, and often repeating such language in different ways. The current rules for presenting instructions and obtaining review of the judge's decisions give no incentive to lawyers to submit balanced and simple, but complete, jury instructions. After receiving opposing, unbalanced sets of proposed instructions from the lawyers, the judge will then attempt to assemble the excerpts into a cohesive, neutral body of text that will educate the jury about all relevant aspects of the law applicable to any issue raised by the evidence and the contentions of the parties. Unfortunately, the instructions proposed by counsel will hamper, not assist, the judge's efforts to instruct the jury. Unless the judge can accomplish a creative synthesis of the proposed instructions, or ignores them, the jury will hear a number of excerpts that apparently conflict with each other. Further, the excerpts often contain misleading legal usages of common terms, legal jargon, and other confusing and misleading instructions. The result is that the jury instructions will fail to enable jurors to understand the contours of the applicable law simply because those contours cannot be learned by ordinary citizens through cramming; the law can only be learned by legal study that systematizes and harmonizes the body of relevant legal texts into a coherent whole. What is sensible to judges and lawyers, who have had years to learn the contours of the law, will remain opaque to jurors without similar training and experience.

Instead of treating jury instruction as a compulsory mini-law school, it is far superior to orient jury instruction practice so that it helps the jury do its job, which is to resolve questions of fact. The method advocated in this Article, which is already practiced in Kentucky and toward which the Georgia Supreme Court may be moving,² is to limit instructions to the core factual issues that control the ultimate verdict. This method will be called the "Kentucky Approach." The judge gives instructions in order to call for the jury to do something, rather than to contribute to the jurors' knowledge of somewhat random information about the law. Instructions are framed around the parties' respective burdens of proof and their contentions. Typically, a complete instruction on liability in a simple tort case would take the form of, "D had a duty to do x, y, and z; if you believe from the evidence that D failed to comply with any of these duties and that the failure to comply was a substantial factor in causing P's injuries, you should find for P; otherwise, you should find for D." Instructions in cases with legal issues of greater complexity will still be framed in terms of the factual issues that the jury must resolve in order to determine whether a party with the burden of proof has sustained that burden. Examples of instructions in increasingly complex tort cases are given in the Appendix. The point of these instructions is to call upon the jury to perform its fact-finding function, rather than the essentially legal function of harmonizing disparate legal texts.

Much appellate litigation over jury instructions reflects a conflict between these two orientations toward jury instructions, and the tension between them is nowhere more apparent than in the appellate disputes over the "legal accident" instruction in tort law. Prior to the final abolition of the instruction in 1992,³ the approved pattern instruction on this concept provided,

If you should find from the evidence in this case that neither plaintiff nor defendant were guilty of negligence, then any injuries or damages would be the result of an accident. The word "accident" has a specific and distinct meaning, as it is used in connection with this case.

Accident is strictly defined as an occurrence which takes place in the absence of negligence and for which [no] one would be liable.⁴

The supreme court rejected this instruction for several reasons that apply to jury instructions generally.⁵ It noted that the use of the term "accident" would create "confusion because of the difference between the legal definition of 'accident' and the commonly understood meaning of the word as an unintended act."⁶ More generally, it found the instruction "unnecessary, misleading, and confusing" because it was "nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury," and that the "standard instructions on negligence, proximate cause, and burden of proof are sufficient to instruct the jury that the plaintiff may not recover when an injury occurs without the defendant's fault."⁷ In other words, the supreme court rejected this instruction because more narrowly focused instructions sufficed.⁸ These instructions sufficed because the accident instruction was, at best, an additional way of saying the same thing and, at worst, posed a substantial risk of misleading jurors about the correct standard.⁹

On the other side, appellate judges argued that an "accident" charge was necessary in order to counter "the charitable though misguided notion that misfortune is itself compensable, regardless of fault," and that the plaintiff could not be harmed "merely by having it called to the jury's attention that it is possible, at least, for the injury to have occurred notwithstanding the absence of negligence on the part of either of the parties to the lawsuit."¹⁰ Another judge, writing for the majority in a whole court case, ruled the charge mandatory by reasoning that trial judges should not charge only "abstruse summaries of 'general principles' presented in their most encapsulated, reversal-proof form" and refuse to give clarifying instructions reflecting "unique characteristics" of the particular lawsuit.¹¹ In deciding whether to add another, more specific charge to an existing general charge, the court should first determine whether the general charge, viewed from the perspective of an average juror who is unskilled in the law, gives the juror the rules needed to resolve the issue.¹²

Although the narrow, more "Kentuckian" view prevailed with regard to the legal accident doctrine,¹³ the expansive Lecture Approach has prevailed in a number of other conflicts noted below.

This Article will first document the importance of ensuring that the jury correctly understands the trial judge's instructions on the law. It will then survey various problems that the current system of jury instruction practice in Georgia poses. Legal jargon and writing styles contribute to incomprehensibility. The length and disjointed composition of the overall charge hinder understanding. The tendency of charges to elaborate on the controlling standards in argumentative ways causes the charge to confuse or mislead the jury about the issues they are to resolve and the proper standards for resolving them. The Article will then examine why jury instruction continues to be so poor, including the partisanship of lawyers, the fear of reversal of trial judges, and appellate rules for review. The Article will propose that Georgia adopt an overall approach to jury instruction similar to Kentucky's system. This approach will best cohere with our fundamental notion that juries resolve issues of fact, not issues of law. It will eliminate jargon and impose a structure and limit on jury instructions that promotes understanding by jurors. The Article will then examine several areas of jury instruction practice in Georgia, document the counter-productive results of the Lecture Approach, and show how much more comprehensible and legally better the instructions would be if the Kentucky Approach were applied.

I. The Importance of Making Instructions Understandable AND UNDERSTOOD It is critically important that the jury understand the court's instructions.

[J]urors should be able to understand the law as the judge explains it. Otherwise, we would not be governed by the rule of law, but simply by the rule of people. We have juries in order to inject an element of democracy into the legal system, but we do not seek freewheeling, anarchic decisions without legal foundation.¹⁴

Our country and state have made a political decision to have ordinary lay people decide disputes as jurors, determining facts and applying law. If the law is too complex for the jury to apply faithfully, our political system must change. Fidelity to our constitutional decentralization of dispute resolution power requires that we endeavor to make the law comprehensible to ordinary lay people.¹⁵

The vast majority of jurors make a good faith effort to follow instructions given to them by the trial judge.¹⁶...