Research has shown that one of the biggest points of confusion for jurors in performing their duties is understanding and applying the instructions of law given to them by the judge.  There are several possible approaches to reducing this confusion:

• Changing the timing of when the instructions are given; for example, by giving some of them at the beginning of the trial rather than the end, or before the attorneys’ summations rather than after
• Giving the instructions to the jurors in writing to take to the jury room, rather than orally
• Changing the content of the instructions to make them less in “legal-ese” and more in “plain English.”

Here, we will examine the “plain English” approach.  The first premise of this approach is undeniable: the law employs a special vocabulary for those who are legally trained that is not easily or correctly understood by those without such training.  The second premise is likewise undeniable: jury instructions are written by lawyers, and are often filled with legal language whose meaning is not apparent to those without legal training.  Thus, it is not surprising that jurors, most of whom do not have legal training, struggle to make sense of the instructions. 

Changing the status quo always takes significant effort, especially when there is a viable rationale for the status quo remaining unchanged.  As to jury instructions, there is such a rationale: a faulty jury instruction is one of the prime causes of reversal on appeal, and use of instructions that have passed appellate muster in earlier cases insulates the verdict from reversal on that ground.  Thus, “standard” or “pattern” jury instructions (which were written by lawyers, often decades ago) have a strong tendency to be perpetuated.  Experimenting with a “novel” jury instruction is viewed as dangerous by lawyers and trial court judges alike.  Indeed, in some jurisdictions, use of the approved pattern instructions is mandatory.

Nonetheless, there is a trend—albeit slow and spotty—toward re-drafting jury instructions into “plain English.”  That trend is part and parcel of the jury innovations movement.  To read more about “plain English” jury instructions, click here.

More about “plain English” jury instructions

More than two decades ago, Alaska hired two law professors to re-draft the state’s jury instructions.  These professors put the new instructions into the much plainer English.  To see these instructions, click here. But this experiment did not result in a trend.  Indeed, it was only in the late 1990’s that a few other jurisdictions began efforts to re-draft instructions into plain English. 

The most influential such effort will undoubtedly be that of California, which unveiled a comprehensive new set of plain English civil instructions in 2003 that was the result of a multi-year project.  To see these instructions, click here.  A new set of California criminal instructions drafted by a different committee is scheduled for completion soon. 

Other states with completed instructions that have a plain English emphasis are Delaware (civil), Michigan (civil and criminal), Minnesota (civil), Missouri (civil), and North Dakota (civil and criminal).  Committees in several other states are re-drafting instructions specifically to use more plain English including Arizona, Florida, Vermont, and Washington.

For jurisdictions that want to achieve the best comprehension through plain English instructions, it seems advisable that the re-drafting committees not be composed solely of lawyers.  Such a committee ideally needs input from a linguist, and from non-lawyers.

There are some guidelines for drafting in plain English.  To see one set of nine guidelines, click here. 

 Readings

Here are some other sources of information about plain English jury instructions:

Thomas Lundy, 29 Champion 52 (May 2005), Column Jury Instruction Corner.

James D. Wascher, 19 Cal. B. Assoc. Rec. 50 (Feb./Mar. 2005), Special Yls Section: The Importance Of Jury The Long March Toward Plain English Jury Instructions.

68 Tex. B.J. 204 (2005), Feature Final Approval Of Amendments To Jury Instructions Under Rule 226a, Texas Rules Of Civil Procedure.

Dorothy F. Easley, 78 Fl. Bar J. 66 (Oct. 2004), Column, Plain English Jury Instructions: Why They’re Still Needed And What The Appellate Community Can Do To Help

James D. Ward, California Adopts “Plain-English” Civil Jury Instructions, 87 Judicature 300 (May-June 2004).

Bettina E Brownstein, It’s Time to Make Jury Instructions Understandable, 37 Arkansas Lawyer 24 (Fall 2002).

Peter Tiersma, The Rocky Road to Legal Reform: Improving the Language of Jury Instructions, 66 Brooklyn L. Rev. 1081 (June 2001).

Leon D. Lazer, Is Plain English the Answer to the Needs of Jurors? 73 N.Y. St. Bar J. 37 (2001).

Matthew I. Katz, Plain English Jury Charges, 27 Vt. Bar J. 9 (2001).

Joel D Lieberman & Bruce D. Sales, Jury Instructions: Past, Present, and Future, 6 Psycho., L. & Pub. Pol. 587 (2000).

Go Back