Above All, Use Plain
Crafting jury instructions is challenging, but by
clear language you can improve your juror’s comprehension.
By Celia C. Elwell, RP
One of the goals of jury instructions is
to improve each juror’s comprehension. Certainly you want each juror to understand
exactly what each instruction means. If the juror doesn’t understand the instruction,
the outcome of the case might as well be decided by spinning a bottle.
Remember, you are writing for someone who is unfamiliar
with legal phrases and terms of art. First and foremost, eliminate legalese from the
instruction. Words such as "said," "hereinafter" and
"aforementioned" have no place here. This is no time to cling to stuffy words or
The rules used for all good legal writing apply. Use the
active voice. Use short words, short phrases, and short paragraphs. Make it as
straightforward and logical as you can. Your goal is to be brief, but clear.
Uniform or pattern jury instructions are often taken
directly from the language of a statute or appellate opinion. Because this is so, it can
be difficult for a layperson — your juror — to follow the instruction’s
meaning. Your job is to tailor each instruction to the facts of the case, and to edit the
instruction so it is written in clear and concise language. It’s critical each juror
has a crystal clear understanding of each instruction.
Be wary when using form, or boilerplate, instructions.
Pay particular attention to detail, and edit carefully. Always proofread each instruction
carefully. Failure to do so makes you and your firm appear sloppy and unprofessional.
Here is an example of what I mean. See how many examples
of bad writing you can find.
Should you find in your deliberations
for negligence on the part of the
parent of the Plaintiff [name], said negligence cannot be charged or held
against aforementioned child to prevent, reduce, or otherwise subtract
recovery for said child for the said injury the child named above may have
sustained as a result and consequence of the combined negligence, if any,
of the Defendant [name] and said parent.
Take a moment to re-write this horrible paragraph. Many
unnecessary words can be deleted, as well as legalese. Also, this example ignores the
"rule of short." This paragraph, a single sentence, is six lines long and 67
words. Here is one possible solution.
If you find negligence was committed
by the parent of Plaintiff [name],
negligence cannot be charged to Plaintiff to prevent or reduce recovery
for any injury Plaintiff may have suffered as result of the combined
negligence of Defendant [name] and Plaintiff’s parent.
Now the instruction is only four lines long and 42 words.
By deleting the legalese and other unnecessary words, the instruction is clearer and
easier to read and understand.
I live by the maxim of "whatever can be
misunderstood, will be." To avoid this calamity, you must write jury instructions
that are easily understood during the first reading by someone who has no legal background
or knowledge. Crafting well-written jury instructions encompasses knowledge of the law,
the court rules, and excellent writing habits.
A complete overview on drafting jury instructions can
be found in the Real Solutions section of Legal Assistant Today’s January/February 2002 issue titled "Panel of Peers" on