California Adopts "Plain-English" Civil Jury Instructions
Ward, James D., Judicature
California has entered a new era of "plain-English" civil jury instructions. Culminating a six-year effort by a jury instruction task force, the judicial Council of California adopted plain-English instructions and a new Rule of Court declaring them the official instructions for the state and strongly encouraging their use. While these are not the first plain-English instructions in the nation, they are a significant advance in the jury process since California has the country's largest court system.
California has long been a leader in pattern jury instructions. The instructions predominantly in use for 60 years were known as BAJI, the Book of Approved Jury Instructions. Originated in 1938, they were maintained by a committee of the Los Angeles County Superior Court. That court and its publisher hold a copyright to BAJI. In 1996 a Blue Ribbon Commission on Jury System Improvement, appointed by Chief Justice Ronald M. George, recommended that new instructions be written in plain English. The commission concluded, "Jury instructions as presently given in California and elsewhere are, on occasion, simply impenetrable to the ordinary juror."
A difference of opinion had developed between the BAJI committee and those who sought plain-English reform. The BAJI committee steadfastly maintained that jury instructions had to track the language of appellate court decisions while reformers sought simpler language more readily understood by jurors. In 1997, Chief Justice George appointed the task force to write new instructions. The task force initially assumed it would simply revise BAJI, but when confronted with the BAJI copyright, it drafted from scratch.
There was good reason to undertake this project. Evidence established that jury instructions were not doing their job effectively: They were not explaining the law in a clear fashion, and tests established a failure to communicate adequately with people whose educational level is, on average, several steps below judges and attorneys.1 Studies showed the problems with the legal jargon in use.2 For example, when tested on legal phrases, Washington, D.C. jurors showed limited understanding of familiar legal terms. More than half could not define "speculate." About a quarter selected the wrong answers for "burden of proof," "impeach," "admissible evidence," and "inference." Most tellingly, however, more than one-half thought that "preponderance of the evidence" meant a slow, careful pondering of the evidence.
Psycholinguistic studies have demonstrated that there is an improvement in comprehension when relatively common terms are used to define legal concepts.3 The legal profession takes for granted the length and complexity of jury instructions, but to the lay person the instructions are overwhelming. In California, the use of language from appellate opinions, which are written for an audience of lawyers, not jurors, was a root cause of the problem. The language was complex, ponderous, and subject to special meaning. To use the overworked phrase, the instructions were written in "legalese." Juries today are required to deal with increasingly complex matters and complexity demands greater clarity of explanation. California has a culturally diverse population and a large number of people claim English only as their second language. Many of these people are being called to jury duty because of new methods of locating and tapping the jury pool. A complicated form of the English language no longer works to communicate with jurors.
Drafting jury instructions from scratch is difficult. The task force used a minimum of three steps: staff drafts, subcommittee refinement, and full task force consideration. The instructions were vetted with experts in various legal specialties and were distributed for public comment. Nineteen legal organizations and hundreds of individual lawyers gave helpful suggestions. An editorial staff made technical corrections, maintained a consistent style, and ran readability checks to test for clarity. …