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“Plain English” Jury Instructions: Why They’re Still Needed and What the Appellate Community Can Do to Help

Appellate Practice

I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.

— Thomas Jefferson

Nearly a decade ago, Shari Seidman Diamond, a psychologist and professor of law, and Judith Levi, a linguistics professor, published a study evaluating jurors’ understanding of capital jury instructions in Illinois.1 Participants in the study consisted of two groups of individuals who were eligible to sit as jurors. After listening to evidence at the guilt and sentencing phases of a mock criminal trial, each group was given different jury instructions: one group received the official Illinois Pattern Criminal Jury Instructions for capital cases; the other received instructions that the authors had revised. To ascertain how well they understood the instructions, both groups of mock jurors were then tested. Those jurors receiving the pattern jury instructions had, on average, a 50 percent rate of accuracy. contrast, those receiving the revised instructions achieved an average score of 60 percent. Additionally, the average number of incorrect responses, which were 45 percent with pattern jury instructions, fell to 30 percent with the rewritten instructions.2 These test results prompted Illinois to simplify both its civil and criminal pattern jury instructions.

The syntactic and word choice difficulties that jurors face in the courtroom, particularly with jury instructions, are well documented and pose a recurrent problem.3 Given the clear consensus on the difficulties of wading through long, complex sentences and highly technical terms of art, it is hard to understand why the legal system (particularly trial courts) would remain reluctant to simplify pattern instructions used in most U.S. jurisdictions, or even to allow appellate lawyers sitting as appellate chair to draft yet simpler versions of pattern instructions to fit the particular case.

This article recognizes the advances in Florida’s instructions. They are represented by the introduction of pattern instructions with increasingly simpler language, and Florida’s continuing dialogue in the appellate arena over how to simplify pattern instructions even more.4

The Florida Standard Jury Instructions were adopted in 1967 to simplify and standardize instructions by trial courts to juries. The purpose behind jury instructions is to attempt to provide juries with concise, understandable statements of the law as applicable to their cases. Appellee asks us now to assume, where part of an instruction was left out, that the jury considered and took into account the omitted portions of the instruction anyway. Disability, mental anguish, and loss of capacity for the enjoyment of life are important elements of damages, and in the absence of instruction thereon, we cannot assume that the jury considered them. We admonish juries to take into consideration only the law, as given to them by the judge’s instructions, in reaching their verdicts. To accept appellee’s argument in the case sub judice would be to condone just the opposite practice.5

While noting such improvements, this article suggests that appellate courts and practitioners alike should push Florida’s trial courts harder still to identify those chinks in the wall of resistance, and to offer a model for “plain English” reform that draws on a recognition of the ubiquitous bottom line: The role of the jury as finder of fact must compete with a continued trial court perception that jurors are to be carefully controlled.6

The Problem

It is quite a concept we have in this country: trial by jury. Two teams of legal professionals gather in a courtroom, a judge presides and makes rulings, and two sides argue their cases in front of a group of people that presumably represents a cross-section of citizens of different ages, races and ethnic origins, educational levels, life experiences, and religious and philosophical bents. And then this temporary assemblage of randomly selected citizens is asked to make sense of some very complex legal issues, in order to determine ultimately which side wins and which side loses. In this process, the trial judge serves a vital role in deciding the quantity and kinds of instructions to give members of the jury. The instructions are supposed to help clarify the law and guide jurors on how to apply that law properly to the evidence in a particular case, so that they may reach a verdict.

In any given case, the more complicated the issues at stake, the more important jury instructions become. Of all the cases that go to trial, criminal and medical malpractice are among the most complex. Usually, the cases involve someone who has either died or been profoundly harmed by the accused, leading to a significant likelihood that emotions will play a role in the jury’s decision. In addition, the medical malpractice cases typically turn on scientific opinions of numerous experts. These opinions concern, as an initial matter, whether there is an injury; and if so, what caused it, then who caused it, and how much of the latter’s conduct caused it as opposed to that of another defendant or unnamed person, all of which must be considered in light of who may be responsible for whom. In short, the facts of the case often give rise to difficult-to-grasp issues that can easily leave even the most intelligent and well-educated jurists bewildered. Then enter the jury instructions.

Other institutions—for example, hospitals and the military—concern themselves with the intelligibility of documents meant to be read and understood by the general public. The Air Force expends significant efforts to make its technical instruction manuals understandable.7 The Centers for Disease Control and Prevention (CDC) publish information for the medical community aimed at improving the readability of materials used in conducting human subject research.8 Communications experts suggest that writings designed for public consumption should be pitched to a 10th-grade level; others argue that gearing such writings to a 6th-grade audience would be even better.9 The desired norm appears to be an 8th- to 10th-grade level.10

In law, there is a residual perception that it takes a complex style to convey a subtle or complex idea. That is a common theme among legal critics of the plain English movement. Yet, complex ideas which are presented to busy people (e.g., judges and jurors) call for clear, simple prose. The substance is challenging enough; why compound the challenge with a difficult prose style? How does the act of translating a jury instruction from the passive to active voice, shortening sentences, or removing the long strings of subordinate clauses separating subject from verb make an instruction less “exact”?11 Yet, that is often the perception in courtrooms.

Consider the following instruction from an actual 1994 case that was still using a jury instruction taken from an 1850 case written by Chief Justice Shaw of the Massachusetts Supreme Court. In Victor v. Nebraska, 511 U.S. 1 (1994), challenges were raised concerning the definition of “reasonable doubt,” as defined in Nebraska and California jury instructions that were litigated all the way to the U.S. Supreme Court. The challenged California instruction read:

Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is the state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.12

The Supreme Court ultimately held that the challenged instructions did not violate the due process clause, but strongly criticized the instruction. Justice Ginsburg, concurring, suggested that Nebraska and California use the definition of reasonable doubt proposed by the Federal Judicial Center:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.13

But was the proposed instruction simple enough? It was clear and well written from the perspective of those in the legal profession. Yet, a readability analysis of this proposed instruction, using the Word software program, determined that it averaged 25 words in a sentence, and was at a Flesch-Kincaid Grade Level of 11.2, i.e., the proposed instruction was written for an 11th-grade reading level.14

The following statistics merit consideration in the overhauling or case-by-case redrafting of jury instructions in Florida, both in the civil and criminal arenas:

• The average reading level of American parents of young children is 7th or 8th grade.

• About one in every four Americans (25 percent) is a high school dropout.

• About half (45 percent) have gone to college for some period of time, but fewer than one in six (15 percent) have a college degree.

• Nearly 50 percent of the Americans surveyed cannot read well enough to find a single piece of information in a short publication, nor can they make low-level inferences based on what they read.15

In light of those statistics, consider Florida’s Standard Civil Jury Instruction 4.1 on the basic concept of negligence:

Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do something that a reasonably careful person would do under like circumstances.

To lawyers and judges, this instruction on negligence would likely appear both clear and simple. Yet, a readability analysis using Word of this proposed instruction determined that this paragraph averaged 19 words in a sentence, and scored a Flesch-Kincaid Grade Level of 12, i.e., the proposed instruction was written for an 12th-grade reading level.

It is therefore no surprise that, notwithstanding the Supreme Court’s ultimate finding that the confusing jury instruction in Victor v. Nebraska did not violate the due process clause in 1994, unclear jury instructions raise fundamental due process concerns on a very basic and very real level that should not be discounted. In 1999, Justice Sandra Day O’Connor received an enthusiastic welcome from an audience of lawyers, judges, and court administrators gathered in Washington, D.C., for a National Conference on Public Trust in the Justice System. In the course of her remarks, which went largely unreported, the associate supreme court justice said that jurors were handing down verdicts without a clue as to what was going on.

Too often, jurors are allowed to do nothing but listen passively to the testimony without any idea what the legal issues are in the case. In many instances, they are not allowed to take notes or participate in any way. Finally, they are usually read a virtually incomprehensible set of instructions and sent into the jury room to reach a verdict in a case they may not understand much better than they did before the trial began.16

Some Proposed Solutions

It is fundamental to a fair trial that a court not just properly, but also understandably, charge the jury in a criminal matter, and that an unclear instruction on material issues must also be presumed to constitute reversible error in criminal matters.17 Arguably, the same is equally true in medical malpractice cases, where a plaintiff’s claimed lifetime of damages and a doctor’s claimed livelihood hang in the balance of a jury’s filtering through mountains of complex scientific opinion testimony. A trial judge has an absolute duty to charge the jury on the law governing the facts of the case in a way that an average layperson can understand.18

In 1993, two sets of legalese-free standard criminal jury instructions were given “Clarity Awards” by the Criminal Jury Instructions Committee of the State Bar of Michigan.19 Both sets of jury instructions were developed by applying research from several earlier studies.20 Florida should build on a similar process, giving greater visibility to the already recognized importance of clarity by publicly rewarding it.

The California Judicial Council, at its July 2003 meeting, unanimously approved about 800 new civil jury instructions and special verdict forms for use in California trial courts. In introducing the instructions, Chief Justice Ronald M. George stated:

The new plain English jury instructions are a major contribution to the Judicial Council’s historic efforts to reform the California jury system. The new simplified jury instructions will help ensure that jurors understand the law and apply it correctly during their deliberations.21

The Task Force on Jury Instructions worked for years to realize its goal of drafting comprehensive, legally accurate jury instructions that were readily understood by the average juror. California Rule 855 now urges their use:

The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California. The goal of these instructions is to improve the quality of jury decision making by providing standardized instructions that accurately state the law in a way that is understandable to the average juror. . . . Use of the Judicial Council instructions is strongly encouraged.22

As a result of its work, the judicial council received the 2003 Burton Foundation Award for Outstanding Reform, a national award for clear legal writing.23 Florida, which perceived the problem 30 years ago, should be recognized as a leader in jury instruction clarity.

Certainly, comprehensibility is as important as accuracy. Judges and practitioners should be willing to translate opinions and statutes into plain language, instead of insisting on their exact language in instructions. Laypersons should review these instructions; and instructions can be spot-tested on members of the public, with a target comprehension goal of 70-75 percent. These instructions should also be evaluated by communications experts to ensure that they are written for as close to an 8th-grade reading level as possible. We should be willing to innovate in our instructions to jurors in basic ways:

• Use contractions (doesn’t, they’re, hasn’t, wasn’t).

• Use the active voice and avoid the passive voice.

• Use the first or second person voice (first person: I, we; second person: you).

• Avoid the third person voice (he, she, it).

• Use concrete examples to illustrate how the law applies.

• Use selective repetition (“In other words. . . . ” “This means that. . . . ”).

• Use flagging and summarizing techniques (“Now, I want to explain to you about.. . . ” “What I mean by that is.. . . ” “So, in other words, you must decide whether.. . . ”).

• Encourage the instructing judge to use language that is case-specific (“As I explained to you before, the defendant, John Smith, is on trial here because the State has charged that [brief description of the charges against him]. During the trial, you’ve heard the testimony of Dr. Mary Jones, who is described to us as an expert in ___________.”).

• Use carefully chosen verbs; avoid the overuse of modifiers.

• Include copies of charts or other graphics that might be given to the jury in the instructions.
[This list of suggestions, and most of the advice in the previous paragraph, follows Joseph Kimble, 8 Scribes J. Legal Writing 39, 53-54 (2001-2002).]

Appellate counsel should also advocate this simplification process. Most attorneys practice appellate law because they love the law and enjoy persuading with the pen. They are predisposed to craft simple jury instructions to stand up to appellate scrutiny. But even the best appellate practitioners cannot do this alone. Until more and even simpler pattern jury instructions are approved, we must attempt to persuade trial courts to allow simplification of the existing pattern instructions and critical special instructions on the elements of a cause of action (e.g., as is often the case in complicated areas such as medical malpractice trials, there are no pattern instructions explaining the elements of negligent stillbirth). “Responsibility for the shortcomings of present practices must be shared by lawyers, trial courts, and appellate courts lawyers for submitting self-serving, excessively long and argumentative instructions, trial judges for adhering to archaic practices out of fear of being reversed, and appellate courts for elevating legal abstractions over juror understanding.”24 The appellate courts, therefore, also need to help in this process by underscoring for our trial courts that it is permissible to simplify pattern instructions with plain English, and to customize instructions to fit the respective cases. Likewise, special interrogatories must include single questions stated in plain terms; and none should be allowed if they are compound, repetitive, confusing, or misleading.25 In addition, the verdict form should use the same terms as those in the instructions.26

Appellate practitioners can help trial lawyers to ensure that the law is being effectively communicated to fact-finders of the cases in which the former are sitting as appellate chair. Take, for example, the 1976 landmark decision of Gregg v. Georgia, 428 U.S. 153 (1976), which reinstated the death penalty after the Supreme Court had invalidated it only four years earlier. In Gregg, the justices predicted that new state laws would eliminate the arbitrary and unprincipled death sentences that the Court had found were commonplace when it ruled previously that the death penalty was unconstitutional. In a 7-2 opinion, the justices offered this optimistic pronouncement: “No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines.”27

A quarter of a century later, the U.S. has executed approximately 820 people.28 Roughly 3500 are on death rows across the country.29 And while it is true that the states have adopted new, simpler instructions to guide jurors in making life or death decisions, it is also true, as reflected in Justice O’Connor’s 1999 comments and in numerous decisions across the country, that many jurors appear to be just as confused about the law as they were when the Supreme Court put the death penalty on hold. The same considerations haunt litigants in complex medical malpractice cases, where jurors must evaluate mounds of scientific evidence, in addition to extremely complex liability specifics and antiquated agency doctrines superimposed on modern, complex health care relationships.


Research continues to indicate that in order to communicate effectively with a general audience in the U.S., writers should gear their words to an 8th-grade reading level. Contrary to lingering belief, crafting jury instructions to increase jurors’ understanding does not entail “dumbing down” the information.30 It entails appellate lawyers meeting their professional responsibility to write as accessibly as they can, and appellate courts continuing to communicate explicitly their support for the advancement of “plain English” instructions to sometimes-reluctant trial courts. Clearly, writing at more easily comprehended reading levels, even for highly educated audiences, is more effective. It is not a question of if, but rather of when, we are going to craft jury instructions that serve their intended purposes.

1 Sidebar—Illinois Study Revises Jury Instructions (located at (“Illinois Study”);; faculty/fulltime/diamond/diambib.html. See also Judith N. Levi, Evaluating Jury Comprehension of Illinois Capital Sentencing Instructions, 68 American Speech 20-49 (1993); see generally William J. Bowers & Benjamin D. Steiner, Choosing Life or Death: Sentencing Dynamics in Capital Cases, in America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction 309, 321–28 (James R. Acker et al. eds., 1998) (indicating jurors’ difficulty in understanding jury instruction in capital punishment cases regarding aggravating and mitigating factors); Craig Haney, Mitigation and the Study of Lives: On the Roots of Violent Criminality and the Nature of Capital Justice, in America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction 351, 356–60, 385–404 (James R. Acker et al. eds., 1998) (indicating jurors’ difficulty in understanding jury instruction in capital punishment cases regarding aggravating and mitigating factors).

2 Compare paragraph from Illinois Pattern Jury Instructions with Diamond and Levi’s revised instructions:

Illinois Pattern Jury Instruction: “Under the law, the defendant shall be sentenced to death if you unanimously find that there are no mitigating factors sufficient to preclude imposition of a death sentence. If you are unable to unanimously find that there are no mitigating factors sufficient to preclude imposition of a death sentence, the court will impose a sentence other than death.”

Diamond and Levi’s Revised Instruction: “Illinois law states that in order for the jury as a whole to reach a verdict of imprisonment in a case like this, at least one member of the jury must decide that there exists at least one mitigating factor (or a set of mitigating factors taken together) which is ‘sufficient to preclude the imposition of the death penalty.’ The word ‘preclude’ means to ‘rule out or prevent from happening.’ The death penalty is ‘precluded,’ or ruled out, if at least one juror is not persuaded, after weighing the aggravating and mitigating evidence, that the death penalty is the appropriate sentence.” Illinois Study.

3 See generally P.M. Tiersma, (2000); Bethany K. Dumas, Jury Trials: Lay Jurors, Pattern Jury Instructions, and Comprehension Issues, 67 Tenn. L. Rev. 701-42 (2000); Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849 (1998); Dylan Lager Murray, Plain English or Plain Confusing?, 62 Mo. L. Rev. 345 (Spring 1997).

4 Florida recognized almost 30 years ago that jury instructions remain in need of continued simplification: “Despite the best efforts of the bench and bar of this state, jury instructions have been difficult to formulate in language which is both readily understandable by the layman and technically sufficient to encompass all of the requirements of law. At the present time an extensive study is being conducted, headed by Circuit Judge David Strawn, to find methods of better communication between the court and jurors on the matter of jury instructions. Hopefully such study will in time be sufficiently productive so as to eliminate the type of confusion and obvious miscarriage of justice as resulted in this case.” Crapps v. Murchek, 330 So. 2d 173, 176 (Fla. 4th D.C.A. 1976). The Florida Standard Jury Instructions in Civil Cases have been revised more than two dozen times since the Florida Supreme Court established the Supreme Court Committee on Standard Jury Instructions on March 12, 1962.

Also illustrating the efforts to address jury instruction problems, the National Center for State Courts, headquartered in Williamsburg, Va., works to improve justice by providing leadership and service to the country’s state courts, including guidance on jury issues. The National Center anticipates new developments, identifies best practices, promotes innovation, and evaluates court performance. Founded in 1971 by then-Chief Justice Warren E. Burger and others, The National Center is an independent, nonprofit organization governed by the leadership of the Conference of Chief Justices and the Conference of State Court Administrators.

5 Capone v. Winn-Dixie Stores, Inc., 233 So. 2d 175, 177-78 (Fla. 2d D.C.A. 1970).

6 See generally Dumas, supra note 3.

7 Bettina E. Brownstein, Esq., It’s Time to Make Jury Instructions Understandable, The Arkansas Lawyer, available at:

8 D. Snider, Jr., M.D., M.P.H., CDC, Associate Dir. for Science, Human Subjects Research, cited at;

9 Id.

10 Id.

11 See (citing Mathewson, Verbatim, Student Lawyer 13 (Oct. 1989)).

12 Victor v. Nebraska, 511 U.S. 1, 7 (1994).

13 Id. at 27 (quoting Fed. Jud. Ctr., Pattern Crim. Jury Instructions, at 17-18 (Instr. 21)).

14 The more common Flesch-Kincaid Grade Level formula converts the Reading Ease Score to a U.S. grade-school level. More than 40 readability formulas have been developed over the years (Klare, 1974–1975). Readability measures guide the construction of textbooks such that the readability conforms to the intended grade level. However, readability formulas are fraught with problems because they do not necessarily give valid predictions of text comprehension. See Univ. of Utah Health Sciences Ctr., Patient Education Materials: An Author’s Guide—Readability Testing, cited at

15 TIR, The Informatics Review, e-Journal of the Ass’n of Med. Directors of Info. Sys., cited at

16 Room for Improvement, 3(4) Dialogue (ABA Div. of Legal Servs., Fall 1999), cited at

17 See State v. Jenkins, 840 A.2d 242, 250 (N.J. 2004).

18 State v. Concepcion, 545 A.2d 119, 122 (N.J. 1988).

19 George Hathaway, Plain Language: Jury Instructions, 75 Mich. Bar J. 298 (Mar. 1996); Plain English Committee, Clarity Awards for 1993, 72 Mich. Bar J. 692 (July 1993). The State Bar of Michigan Committee on Standard Criminal Jury Instructions (Judge William Caprathe, chair) wrote one set, which was published by the Michigan Institute of Continuing Legal Education as Standard Criminal Jury Instructions (2d ed. 1991). The Committee on Pattern Criminal Jury Instructions of the Sixth Circuit District Judges Association (Judge Julian Abele Cook, Jr., chair) wrote the other set of instructions, which was prepared for federal courts in the Sixth Circuit Court of Appeals. This set was published by West as Pattern Criminal Jury Instructions (1991). See

20 E.g., John P. Cronan, Is Any of this Making Sense? Reflecting on Guilty Pleas to Aid Criminal Juror Comprehension, 39 Am. Crim. L. Rev. 1187 (Summer 2002); Fed. Jud. Ctr., Pattern Criminal Jury Instructions (1988); Charrow & Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979). The Federal Judicial Center suggested that courts avoid the following: 1) words that are uncommon in everyday speech and writing; 2) words that convey their less-common meanings; 3) legal terms; 4) sentences with multiple subordinate clauses; 5) omission of relative pronouns with auxiliary verbs; 6) double negatives; 7) abstract style; and 8) instructing the jury about things they don’t need to know. The Federal Judicial Center’s research and models have inspired the work of a number of federal and state committees.

21 Cal. Rules of Ct., Rule 855; see also California courts Web site:

22 Id.

23 California courts Web site: The Burton Foundation, an academic and nonprofit organization, focuses on the advancement of legal writing. Its founder, William C. Burton, is a member of the New York and Florida bars and a partner in the international law firm of D’Amato & Lynch, as well as a former assistant attorney general for the state of New York and author of Burton’s Legal Thesaurus, published by McGraw-Hill. Web site:

24 See Jay E. Grenig, The Civil Jury in America: Improving the Jury’s Understanding of a Case, 24 Am. J. Trial Advoc. 93, 101 (Summer 2000). Justice Ginsburg, for example, stressed the importance of having jury instructions that describe key elements of an offense, including better instructions on reasonable doubt, in Victor v. Nebraska, 511 U.S. at 26–27.

25 See generally Curatola v. Village of Niles, 756 N.E.2d 407 (Ill. App. Ct. 2001); Niewold v. Fry, 714 N.E.2d 1082 (Ill. App. 1999).

26 Id.

27 Gregg v. Georgia, 428 U.S. 153, 206-07 (1976).

28 Capital Punishment, 2001, U.S. Bureau of Justice Statistics, and Death Penalty Information Center, cited at:

29 Id. (citing report in NAACP Legal Defense & Education Fund, “Death Row USA,” specifying number of inmates as of January 1, 2004).

30 Plainly, these statistics on reading level are not a statement on intellect. For instance, Howard Gardner, a noted developmental psychologist and professor at Harvard Graduate School of Education, has long maintained that intelligence is comprised of seven components: musical, bodily-kinesthetic, logical-mathematical, linguistic, spatial, interpersonal, and intrapersonal. See (citing Dr. Gardner’s seminal work, Frames of Mind: The Theory of Multiple Intelligences (Basic Books 1983)); and earlier still (1945-65), Dr. J. P. Guilford, a professor of psychology at the University of Southern California, developed a theory of human intelligence known as “structure of intellect,” indicating that human intelligence is comprised of more than 100 different mental abilities. See;


Dorothy F. Easley is a partner in the firm of Steven M. Ziegler, P.A., in Hollywood, concentrating in health and managed care law. She was awarded the 2002-03 Service Award for her contributions to the Pro Se Appellate Handbook, and the 2003-04 Service Award for her contributions to the Appellate Practice Section website. Ms. Easley is board certified in appellate law, handles state and federal appeals, and also appears as appellate second chair in state and federal trials.

This column is submitted on behalf of the Appellate Practice Section, John G. Crabtree, chair, and Jacqueline E. Shapiro, editor.

Appellate Practice