Navigating the Rocky Road
Navigating the Rocky Road
Bethany K. Dumas
While Tiersma has been as steadfast in his work on jury instructions as on the other topics he has addressed, he would probably say that he has not achieved complete success in that arena. As Tiersma has acknowledged more than once, there is still a need for improving the comprehensibility and usability of jury instructions in most jurisdictions. Objectively speaking, however, Tiersma has been quite successful in explaining (1) exactly why jury instructions are often incomprehensible to lay jurors, (2) the challenging nature of the requirement that jury instructions be legally accurate, and (3) the need for instructions to consider context fully in order to explain jurors’ responsibilities clearly and unambiguously so that instructions do not undermine crucial legal rules such as evidentiary presumptions and burdens of proof. In addition, in his writings and in his active role in jury instruction drafting bodies, he has shown how improvements can be made by the combined efforts of informed and involved drafting committees as well as by trial and appellate judges, trial lawyers, and linguists.
Tiersma’s work on improving jury instruction is grounded in his earlier scholarship on the nature of legal language, work such as his 1999 book Legal Language, which he has continued to develop and update through his website. In that work, he addresses the use of so-called “plain language” in the law and also the related matter of the comprehensibility of jury instructions.
In 2001 he published “The Rocky Road to Legal Reform: Improving the Language of Jury Instructions,” an article based on feedback and discussion of his ideas that had occurred in presentations in previous symposia. In the article, he summarized the history of jury instructions and the roles of courts and jury instruction committees in their construction and potential improvement. The article describes in some detail typical problems involving vocabulary items, syntax, inadvertently slanted presentations of legal issues, and the awkward templates often used in pattern jury instructions. Drawing upon the early research of Charrow and Charrow (1979) and others examining the adequacy of jury instructions, he pointed out that this earlier research on California’s civil instructions demonstrated that mock jurors understood only about one-half of their instructions, but that rewriting the instructions for greater clarity produced much better results. His conclusion, based on this mock jury research and on his own experience and analysis, was that “it is possible to reform the language of jury instructions and thereby achieve greater comprehension” (2001: 1085). Tiersma later summarized his analysis in a useful guide for judges, lawyers, and drafting committees to revise instructions so as to meet both comprehensibility and legal adequacy requirements (Tiersma 2006).
As I began my own research into the comprehensibility of jury instructions, I learned a great deal from Tiersma and other law professors concerned with the issue of comprehensibility and also from social scientists and two judges, both of whom taught me a great deal about the need for clearer instructions and the dangers that lie in the path. Publications by Judge B. Michael Dann of Arizona (Dann and Logan 1986, Dann 1993) and opinions by and conversation with Chief US Magistrate Judge Dennis H. Inman, Eastern District of Tennessee (whom I met when he was still on a state bench), also taught me a great deal.
My own work on jury instructions has involved jury surveys (often in trial context), continuing legal education presentations, and work as a member of the Tennessee Bar Association Jury Reform Commission and the Tennessee Judicial Conference Committee on Pattern Jury Instructions (Civil). I could not have done this research without the guidance of legal professionals, particularly Tiersma and Lawrence Solan, who have often collaborated. I am very grateful for the care with which they have instructed others of us about the need not only for clarity of language but also for the need for full legal adequacy. That involves a full consideration of context and thus includes not only satisfying all jurisdictional requirements (statutory and case law), but also acknowledging (explicitly or otherwise) the relationship between law and fact and stating jurors’ responsibilities clearly and unambiguously in such a way that instructions do not undermine crucial presumptions/burdens.
In recent years, drawing upon both my work with jury instructions and my work with regional and social dialects of American English, I have proposed classroom teaching methods for students who speak a nonstandard dialect of our language. In one law school presentation, “Teaching Students Who Are Native Speakers of Stigmatized Regional/Social Dialects of American English” (Dumas 2012), I addressed the issue by pointing out that few US students speak or understand legalese, then suggesting that legalese is really a domain-specific social dialect, one that must either be acquired intentionally (in law school) or avoided. Similarly, for some speakers of American English, standard English is very much a domain-specific social dialect. Methods of acquisition vary, but classroom activities will facilitate acquisition if classroom instructors understand that speakers of stigmatized regional/social dialects are not breaking rules; they are following different rules.
Several sets of rules are often in use in US courtrooms. Not all players speak all the social dialects in use, and not all players make use of the same discourse patterns in reporting narrative incidents. As early as 1978, researchers were pointing out some of the courtroom implications of the fact that the speaking styles of individuals are closely related to socio-demographic factors, that different styles influence listeners’ impressions of speakers, and that even subtle variations in courtroom speaking styles can influence jurors’ reactions to testimony as well as to the language of attorneys and judges (Conley, O’Barr, and Lind 1978). Since then, there has been much research on the effects of powerful versus powerless language, male versus female patterns, and so on.
Attention must be paid to such differences in ordinary language use by those who seek to improve adequate comprehension of instructions by jurors, usually laypeople with no legal training and hence with little or no knowledge about the semantics, syntax, and adequacy requirements of legal language.
I have in the past, using examples from Judge Inman (see above), suggested that narrative examples can assist in explaining to jurors difficult concepts such as proximate cause. Such examples can be helpful to jurors in that they provide real-world situations. I now suggest that they can also be helpful because of their brief departure from the usually very formal style of jury instructions. They provide narratives with which many jurors will, I think, find it easy to identify, because of the specifics of the narratives but also because storytelling is a very natural discourse technique for many lay jurors. I conclude with the following example, discussed at length in Dumas (2000) with respect to its help in providing real-world situations.
Proximate Cause
Some of these legal concepts or principles can be difficult for laypersons to understand. I hope this example will illustrate for you a practical example of proximate cause: It is negligence for a driver to drive a car that has bald, or slick, tires. If that automobile with bald tires slams into the rear of a car because the driver could not stop due to a combination of slick tires and wet pavement, then the negligence of the driver in driving with bald tires would be a proximate cause of the accident.
It is possible for a person to be negligent without that negligence being a proximate cause of the accident. If the driver of that car with bald tires is stopped for a red light and is struck in the rear by another car, obviously the bald tires had nothing to do with the accident. In other words, the driver’s negligence in driving a car with bald tires was not a proximate cause of that accident.
To find a party to be “at fault,” you must find that party was negligent and that the negligence was a proximate cause of the injury or damage for which a claim was made. You must then determine the percentage of fault of each party whom you have determined is at fault.