by Larry S. Stewart
On March 4, 2010, the Florida Supreme Court authorized the publication of new standard jury instructions for civil cases.1 Unlike the standard jury instructions promulgated piecemeal over the past four decades, the new instructions completely replace existing standard civil jury instructions and constitute a fresh start. The guiding principles of the original instructions were not abandoned, and the changes are not new “law.” Far from it. The new instructions build from the original book in a reorganized fashion, making the instructions easier to use. With updates, expanded substantive instructions, and plain English changes throughout, the new instructions greatly enhance the potential for better and more accurate juror communication. This article traces the development of the new instructions, explains their rationale, and highlights the changes involved.
Development of the New Instructions
In 2006, the Supreme Court Committee on Standard Jury Instructions in Civil Cases2 embarked on a project to reorganize the standard instructions for civil cases because lawyers and judges reported difficulty, ambiguity, and overall dissatisfaction with the organization of the instructions. The organization of the old instructions suffered from piecemeal revisions and additions by the committee over the years.3 In addition, the Florida Jury Innovations Committee’s efforts initiated by the Supreme Court and the lack of overall consistency among instructions drafted over decades led to the need for a general update and plain English improvements to existing instructions.
The committee resolved to correct these deficiencies by completely updating, revising, and fully reorganizing the instructions. The instructions were reordered to follow the logical and normal sequence of a trial. A “legislative” type of numbering system was adopted that allows for orderly and efficient future additions or expansions of the instructions.4 And, full sets of instructions were prepared for all substantive areas of law covered by the instructions.
The guiding principle for the reorganization of the instructions derived from the common sense notion, supported by social science,5 that engaged and educated jurors are more likely to be attentive and motivated, leading to better performance. At the most fundamental level, jurors must understand the law and the issues for the right to trial by jury to be preserved. Effective communication of the juror’s role, the issues in the case, the law jurors must apply, and the procedures to be followed in the trial are, therefore, of paramount importance.
To help achieve its goals of improving the format and content of the instructions, the committee obtained the assistance and advice of a jury communications expert,6 reviewed standard jury instructions from other jurisdictions,7 referred to the Florida Jury Innovations Committee recommendations, and accessed articles about techniques and theories of jury communication. Using those resources, the committee developed a new “template” to reorganize the sequence of substantive law instructions. Because a person’s attention is most focused at the beginning of a communication, the committee decided the instructions should first inform the jurors about the rules they must apply, followed by the issues that they must decide.
Under the old format, the jury first heard general principles — weighing the evidence, believability of witnesses, etc. — and issues to be decided before learning the rules they must apply. For example, in the old instructions, greater weight of the evidence (instruction 3.9) was not defined until after the term has been used repeatedly in instructions 3.1 through 3.8. Under the new “template,” the jury receives a basic summary of the case, followed immediately by the rules and the issues. The ubiquitous general principles instructions were moved to the end.8 This new sequence should result in better understanding of the rules and how they must be applied.
In addition, the committee reviewed all of the comments and notes in the book for needed updates, revisions, and consistency of citations. As a part of that review, the committee determined that over the years, the distinction between comments and notes had become blurred, so all commentary was combined into “Notes on Use.”
The new instruction template does not alter the basic theory and techniques of the original instructions. Instructions continue to be in simple, understandable language, without argument, unnecessary repetition, and without reliance on negative charges.9
The procedure for adoption and publishing of standard jury instructions in Florida requires publication to The Florida Bar for public comment. The new instructions were vetted in a total of 10 separate notices.10 All of the comments that were received were then reviewed by the committee, resulting in certain changes where warranted.
The committee work and publication process spanned three years before the instructions were ready for submission to the Supreme Court, which ultimately resulted in an order authorizing their publication as Florida’s new standard civil jury instructions.
The New Instructions
The organization of the new instructions follows the normal sequence of a trial. Thus, preliminary instructions are in section 200; procedural instructions that may be necessary during the trial are contained in section 300; substantive law instructions are in section 400; and instructions involving matters during and after jury deliberations are contained in section 800. At the suggestion of the judges on the committee, standard oaths are now included in section 100.
To facilitate locating substantive instructions for distinct causes of action, substantive law instructions appear in separate sections for each cause of action; for example, all negligence instructions appear in section 401. Common instructions, such as the introductory instruction, greater weight of the evidence, and legal cause, are repeated in each section in order to provide a complete set of instructions for a given case in one location. This facilitates compilation of a set of instructions for a given case and lessens the chance of mistakenly omitting a necessary instruction.
Damages instructions are likewise separated within section 500 into personal injury and property damages (501.1 et seq.), wrongful death damages (502.1 et seq.) and punitive damages (503.1 et seq.). Basic instructions generally applicable to all cases appear in section 600, and the universally applicable closing instructions are in section 700. This eliminates the need to search back and forth to collect a set of instructions, which was often the case with the old instructions.
The committee expanded several instructions, such as 202.2 Explanation of the Trial Process and 700 Closing Instructions, to explain more fully the trial process and the juror’s role, and to provide important “dos” and “don’ts” that jurors must follow during the trial.11
Most importantly, the committee undertook a comprehensive, plain English revision of the instructions, changing complex or run-on sentences into direct, short sentences with clear, broadly understood wording; substituting words of common usage wherever doing so would not change the substantive meaning of the instruction;12 and replacing technical or legal terms with either words of common meaning or defining the terms if clarity prevented substitution. For example, to help jurors understand the concept of negligence, its definition was expanded to state:
Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances. FSJI 401.4.
Additionally, instead of issues that were previously described as for a jury’s “consideration,” jurors are now told that there are issues they must “decide.” Although the committee recommended a plain meaning expansion of the greater weight instruction, the court decided to retain the former wording.13
Finally, all of the standard instructions, such as greater weight and legal cause, were made uniform across all substantive instructions, eliminating a deficiency inherent in the format of the old instructions.
Beyond these formatting, organization, and plain English changes, substantive law areas, such as professional negligence and different definitions of probable cause, have been substantially revised and updated to provide complete sets of instructions that reflect current law. The changes to professional negligence were the most extensive.
The professional negligence instructions now cover virtually all professional negligence claims. Many of those instructions relate to medical malpractice claims, which are the most predominate professional negligence claims. However, instruction 402.5 covers professional negligence in general, and instruction 402.12 is a new instruction on issues that may arise in attorney malpractice claims.
The old instructions included only a few ad hoc medical malpractice instructions. The new section 402 includes a complete set of instructions for medical malpractice claims updated to current law. Thus, instruction 402.9 Preliminary Issues — Vicarious Liability provides a logical framework for decisionmaking on the preliminary vicarious liability issues, such as agency, independent contractors, nondelegable duties, and joint ventures. Likewise, instruction 402.4 Medical Negligence now covers a variety of different types of negligence, including the presence of foreign bodies, res ipsa loquitur, and the failure of health care providers to maintain records.
Use of the Instructions
The new instructions are designed to engage jurors from the outset of the trial process. Section 201 contains instructions to be given before the voir dire process begins. More extensive explanations of the trial process and the jury’s role in that process are contained in section 202, to be given after the jury has been selected. Of course, the trial judge still retains discretion as to the timing of these instructions.
Often the entire instructions for a case are known before the trial begins and, even if some are not yet settled, most will not change over the course of the trial. The committee, therefore, has strongly recommended that jurors be instructed on the law at the beginning of the case, before the taking of evidence, so that the jury will understand the legal rules and issues as it begins to hear the evidence. Judicial members of the committee who had used this procedure reported that when jurors were instructed at the beginning of the case, they appeared to better understand their role and were more engaged in the process. To facilitate this technique, the committee provided commentary (How to Use This Book, section I, page xvi), introductory instructions (201.1 and initial instructions for each substantive law section), and a sample model instruction (Appendix A, Model Charge No. 1, pp. 3-12). The introductory instructions for the substantive instructions (401.1, for example) include language and comment for situations in which the instructions change during the process of the trial.
The committee also recommends that at the end of the case, the jury should be instructed before final argument. The final closing instruction, section 700, is designed for that procedure so that it can be given after the final argument as a separate instruction before the jury retires to decide the case.
Consistent with the recommendations contained in the Florida Jury Innovations Report,14 the new instructions continue the practice of “personalization” of instructions with parentheses signaling where parties’ names need to be inserted and brackets indicating alternative scenarios for consideration.
While the Florida Supreme Court universally approves publication of standard instructions without declaring that they reflect the current “law,” trial courts are required to use standard instructions or declare for the record why alteration is needed to fully or accurately instruct the jury on the law.15
The language of the new standard instructions was meticulously drafted by the committee and vetted before the Bar by publication and comment before consideration for adoption by the Florida Supreme Court. This process has resulted in instructions that are consistent, accurate, understandable, and complete. The new organization makes it much easier to compile a complete and accurate set of jury instructions for a given case. The many plain English changes incorporated into the new instructions will significantly improve communication of the guiding principles of law and the issues to the jury, giving Florida the most progressive and modern instructions in the nation. Most importantly, these improvements will greatly enhance the ultimate goal of achieving justice in our civil courts.
1 In re Standard Jury Instructions in Civil Cases-Report No. 09-02, So.3d , 2010 WL 727521 (Fla. March 04, 2010). The instructions cover all civil cases with the exception of product liability instructions, which are still pending before the court. The official location of new instructions is the Florida Supreme Court’s Web site at www.floridasupremecourt.org/civ_jury_instructions/index.shtml.
2 In 2006, the committee consisted of 26 members. As of January 1, 2010, the court expanded the committee to 34 members. All members are appointed by the Florida Supreme Court from all geographic areas of Florida, including trial and appellate judges and practitioners with diverse backgrounds.
3 Florida’s inaugural civil instructions, promulgated in 1967, were for automobile cases. Since then, the committee periodically added standard instructions on many other types of cases and filled in new general instructions for various procedural aspects of the trial without substantially reorganizing the format. Layering additional instructions piecemeal led to a less user-friendly, cumbersome source.
4 For example, the committee is currently finalizing instructions for employee “whistle blower” cases. They follow the new template and, when approved for use by the court, will become section 415 of the new instructions.
5 E.g., R.B. Cialdini, What’s the Best Secret Device for Engaging Student Interest? The Answer is in the Title, 24 J. of Clinical and Social Psychology 22-29 (2005); S. Hidi, Interest and Its Contribution as a Mental Resource for Learning, 60 Review of Educational Research 549-571 (1990); D. Kahneman, Attention and Effort (Prentice-Hall 1973).
6 Alan Campo joined the committee in 2004. He has a B.S. and M.S. in applied (counseling) psychology, with extensive post-graduate study in psycholinguistics and is the past president of the American Society of Trial Consultants. During his career, he has performed jury research throughout the nation, including interviewing several hundred Florida jury-eligible individuals. He currently serves as principal and president of American Jury Centers — AJC Consulting.
7 The committee reviewed instructions from many jurisdictions, including the new California “plain English” Instructions by the California Advisory Committee on Civil Jury Instructions. See California Standard Jury Instructions — Civil (CACI, 2008).
8 See, e.g., section 401 in which there is an introduction (401.1), a simple summary of the case (401.2), the rules (401.3 – 401.12) and then the issues (401.14 – 401.23) with the applicable burden of proof.
9 See the “Committee Summary” on page x and “How to Use This Book” on page xii of the Preliminary Pages.
10 The basic reorganized book was the subject of three of those notices. Instructions 401.3 Greater Weight of the Evidence, 401.4 Negligence, section 402 Professional Negligence, section 403 Products Liability, 404.5 Medical Malpractice Insurer’s Bad Faith Failure to Settle, 406.4 Probable Cause, 407.8 Defense Issues (in false imprisonment claims), section 414 Intentional Tort as an Exception to Exclusive Remedy of Workers’ Compensation, section 503 Punitive Damages, and section 700 Closing Instructions were separately noticed for public comment because they either involved substantive law changes or could arguably be said to include substantive changes.
11 Even now, those instructions are being expanded to deal with the potential for juror misconduct that can exist due to modern technology. See Ralph Artigliere, Jim Barton, and Bill Hahn, Reining in Juror Misconduct, 84 Fla. B. J. 8 (Jan. 2010).
12 For example, “before/after” was substituted for “prior/subsequent”; “like” was substituted for “same”; “the” was substituted for “such”; “amount” was substituted for “degree”; “incident in this case” was substituted for “incident complained of”; “decide” was substituted for “determine”; “was caused by” was substituted for “chargeable to”; and “because” was substituted for “on account of.”
13 In re Standard Jury Instructions in Civil Cases-Report No. 09-02, So. 3d __, 2010 WL 727521 at *3 (Fla. March 04, 2010).
14 See In re Amendments to The Florida Rules of Civil Procedure, The Florida Rules of Criminal Procedure, The Standard Jury Instructions in Civil Cases, and The Standard Jury Instructions in Criminal Cases — Implementation of Jury Innovations Committee Recommendations, 967 So. 2d 178 (Fla. 2007).
15 Fla. R. Civ. P. Form 1.985. However, counsel or the court should consider using case-specific instructions when the law changes or when the circumstances of the case require special instruction to fully and accurately instruct the jury on the law.
Larry S. Stewart was a member of the Florida Supreme Court Jury Instruction Committee (Civil) from 2000 to 2010 and served as chair of the Book Reorganization Subcommittee from 2007 to 2010. He is board certified in civil trial advocacy by The Florida Bar and the National Board of Trial Advocacy and is a frequent author and lecturer on various substantive law topics. He practices law in Miami with the firm of Stewart Tilghman Fox and Bianchi.