February 8, 2007

Panel On Writing Plain-English Jury Instructions – Helping Jurors Understand The Law

Professor Joseph Kimble

The job of a juror is to apply law to facts and reach a decision. But things get more complicated from there. What are "mitigating circumstances"? Why "a preponderance of the evidence" instead of "it's more likely than not"? Do we really expect jurors to understand when they’re told that a defendant's not testifying "is not a factor from which any inference unfavorable to the defendant may be drawn"?

The ponderous and convoluted world of the jury instruction was the subject of a January panel on "Jury Instructions in Plain English," presented by Scribes — The American Society of Legal Writers. The panelists were Justice James Ward (California Court of Appeals, retired), Justice Carol Corrigan (California Supreme Court), Professor Peter Tiersma (Loyola Law School, Los Angeles), Professor Joseph Kimble (Thomas Cooley Law School, Lansing, Michigan), and Professor Wayne Schiess (University of Texas, Austin).

Efforts to make jury instructions more understandable are under way in several states. California recently completed two acclaimed projects to rewrite all its civil and criminal instructions in plain English. The chairs of those two committees were Justice Ward (civil instructions) and Justice Corrigan (criminal instructions).

Professor Tiersma (who served on the California committees as an expert in linguistics) began with some history. About 100 years ago, judges began instructing jurors to enable them to reach their decisions according to the law. To cut down on duplication of effort, written "pattern" or standard jury instructions began to appear in the 1920s and 1930s. These pattern instructions focused on preventing error, not on writing clearly and understandably. What was the best way to minimize the danger that an appellate court might overrule the lower court for misstating the law? Rely on the verbatim legal language of statutes and earlier cases. Hence the current state of most jury instructions.
 
In studies, jurors typically score at about a 50% accuracy rate when tested on how well they understand instructions.

Professor Kimble stated that "the traditional language of jury instructions, while maybe not the worst legal writing, represents the worst failure of legal writing." Even when someone's liberty — maybe even their life — is on the line, lawyers haven't been able to state the law in an understandable way. He cited a study concluding that there are probably dozens of people who have been condemned to die by juries who poorly understood the instructions.

Kimble offered several suggestions for revising instructions: let an experienced writer with a background in plain language prepare the first draft; adopt and follow accepted guides for writing plainly; know that even if you make some mistakes, the gains will far outweigh them; and test your product in some way.

Professor Schiess then detailed his experiences on a plain-language jury-instructions task force in Texas. He highlighted the persistent and surprising resistance that some — including judges — still feel toward plain-language instructions. Yet he explained that despite resistance, the Texas task force showed that jury instructions can be improved and made more understandable to typical jurors.

Justice Corrigan provided specific background on reform efforts in California. Clear, simple instructions are essential to reach its increasingly heterogeneous community, since jurors speak 70 or more native languages and come to the process from many different legal traditions. She advised everyone to remember that not every juror started out absorbing the cultural atmosphere the native-born U.S. resident takes for granted.

She remarked that reform involves both an intellectual challenge and a cultural change for lawyers, and that there will always be those with a vested interest in keeping things as they are. Some of the best ways to counter the forces of inertia and fear of change are to include a broad group of people in your efforts, reach out for and incorporate feedback on your rules, and assertively "make the case" for the concrete benefits of change.

Finally, Justice Corrigan reminded the audience that a reform of this type is not law revision. "Problems in the law are not your job. Your job is to explain the law as it exists at this time." What information does the jury need to do its job?

For more information about Scribes, visit www.scribes.org

Founded in 1972, Cooley Law School is now the largest law school in the country. Cooley has three campuses across Michigan, in Lansing, Grand Rapids, and at Oakland University in Rochester. In addition to the J.D. program, students at Cooley can also pursue an LL.M. in Tax or in Intellectual Property.