XIII Using the Language of the Jury Instructions

• Library: The Direct Examination of the Plaintiff's Treating Physician (2017 Ed.)

XIII. USING THE LANGUAGE OF THE JURY INSTRUCTIONS

In discussing the language used by the trial lawyer in questions to the expert witness, Deborah Kuchler explains the importance of using simple, every day language:

The choice of words can be effective when an attorney and expert are explaining their theory of the case. Some words help a story come alive to the judge and jury. These words include "teach," "tell," "explain," "help us understand," "help us learn," "educate us about," "demonstrate," "interpret," "untangle," or "decipher." A second group of words can be used in a demonstrative way to help the jury see what the expert or attorney is saying. Demonstrative words include: "show," "see," "watch," "look at," "view," "picture," "demonstrate," "scene," or "take us there." Other words, however, insult the audience's common sense and should be avoided. Such words include "indicate," "elucidate," "illuminate," "explicate," "expound," "discern," "enlarge upon," or "assist us in comprehending." It is good practice for an attorney to write down and review these words prior to examining the witness so that the attorney can use the helpful words and avoid those that are unhelpful as much as possible. Deborah D. Kuchler, An In-Depth Look at Direct Examination of Expert Witnesses, Trial Tactics, p. 167.

This is certainly good advice. It is also wise to use the language in the jury instructions. These instructions mostly use the easy to understand terminology Debbie Kuchler espouses. Also, the pattern instructions contain the "trigger terms" that will cause the jury to conclude in deliberations that plaintiff's case was proved and a substantial award is justified.

Before the jurors begin deliberations, they will have received direction from a person they may well consider the most authoritative, wise figure in the courtroom, the Judge. Many jurors feel a sense of frustration that the...