COMPLEX LITIGATION

PRESENTING COMPLEX TECHNICAL AND LEGAL ARGUMENTS

Donald E. Knebel Barnes & Thornburg 11 South Meridian Street Indianapolis, Indiana 46204 317-231-7214 dknebel@btlaw.com
2004 Barnes & Thornburg All Rights Reserved

TABLE OF CONTENTS

A. B.

Developing a Coherent Theme of the Case Organizing the Presentation of the Case 1. The Introduction a. b. 2. 3. Opening Statement Introductory Witnesses

4 6 7 7 7 8 8 9 9 10 10 11 11 13 14 14

The Middle - - Presenting Essential Factual Evidence The Conclusion a. b. Expert Testimony Instructions

C.

Presenting the Evidence and the Legal Issues 1. 2. Avoiding Jargon in the Opening Statement Presenting Scientific Evidence a. b. c. 3. Relating Technical Evidence to the Jurors Experiences Avoiding Technical Jargon Showing and Telling

Drafting Helpful Instructions

PRESENTING COMPLEX TECHNICAL AND LEGAL ARGUMENTS by Donald E. Knebel

Many cases triable by jury involve highly technical factual issues, complex legal issues or both. Lawyers often complain about a system that requires lay jurors to decide complex scientific and technical issues, claiming that the result is either purely random or biased in favor of plaintiffs and against big companies. I have two responses to this complaint. First, this is the system we have, so get used to it. Second, juries can understand science at basic levels and at least try to reach just results. The fact that they sometimes may not and are forced to rely on stereotypes is typically the fault of the lawyer, who not only makes no effort for the jury to understand, but practically guarantees that it wont by its approach to the evidence. From my experience, I believe that almost all juries, like judges, sincerely want to resolve cases before them in a way that does justice to the parties and to follow the law in arriving at their decisions. The problem is that many lawyers do not present cases in a way that the finder of fact can determine what a just result would be. Cases are so often laden with unnecessary legal or technical jargon, unfamiliar situations and general lack of organization and clarity that the fact finders do not understand the issues before them. Consequently, they are forced to try to reach a just result by largely ignoring the evidence before them and relying instead on preconceptions about which side is most likely to be in the right. Among the common preconceptions are: (1) a business is likely to be concerned more about profits than about ethics or the truth, (2) personal injury claims are usually insured and insurance companies are supposed to pay injured people, (3) a solo inventor is often taken advantage of by a big corporation. In the June 1999 issue of the ABAs Litigation magazine, Judge Catherine D. Perry of the Eastern District of Missouri, wrote: Triers-of-fact whether judges or juries need to have things explained to them. Evidence that works is evidence the fact finder can understand. The trial lawyers job is to make the evidence understandable. That is not to say that fact finders should be treated like three-year-olds; treating us like reasonably intelligent twelve-year-olds will do the trick. In other words, keep it simple, explain it, make it clear, show us as well as tell us. Perry, What Works Evidence from a Trial Judges Perspective, 25 Litigation 3 (Spring 1999).

This advice to keep it simple, explain it, make it clear and show us as well as tell us is especially important when the subject matter is itself complex, such as when it involves scientific or legal principles beyond the common experience of most jury members and most judges. Making cases understandable to juries therefore requires, at a minimum, (1) that they have coherent and simple themes, (2) that they be organized in ways that allow the juries to learn the material in an orderly way and (3) that they be presented, from beginning to end, so that the complex technical and legal issues can be related to the experiences of the jurors. Making cases understandable to juries does not necessarily guarantee victories. Consider, for example, the response of the mythical trial lawyer to the question about how her case came out Unfortunately, justice was done we lost. What understandable cases will guarantee is a better opportunity for juries to avoid the preconceptions that they must rely upon when the case is otherwise incomprehensible.

A.

Developing a Coherent Theme of the Case.

Based on their limited knowledge of the judicial system, derived largely from criminal cases, prospective jurors typically come to court believing that every case can ultimately be resolved by determining which side represents the hero or victim and which side represents the villain. They perceive their jobs to be simple finding in favor of the victim or hero and against the villain. Jurors (and perhaps judges) tend to see even the most complex cases as requiring them to make a simple determination of who is guilty and who is not guilty. They are not usually impressed with alternative arguments requiring complex logic to decide. Consider, for example, a typical murder case. The only real question a juror often wants to have answered is whether the suspect did it. This fact can be confirmed by the question, surely asked of every lawyer numerous times by non-lawyers, How can lawyers defend a person when they know he did it? Now consider what a juror, with that view of his or her role, may hear in a murder trial. The suspect first formally denies that she killed the victim, asserts the presumption of innocence and demands that the prosecutor prove its case beyond a reasonable doubt. She alternatively asserts that, if the prosecution manages to meet its burden of proving that she in fact killed the victim, she did so in self-defense and/or was temporarily insane at the time. A jury hearing this all-too-typical type of defense, along with associated legal jargon, concludes merely from the articulation of the conflicting theories that the defendant did it and tunes out the entire presentation of evidence. The first step in making any complex case understandable is to try to reduce it, as much as possible, to a relatively simple story about right and wrong. This requires that the lawyer develop a coherent theme of the case, with identifiable heroes and villains.

As is often noted, a trial, correctly done, is similar to a drama. For example, writing in the Fall 1998 issue of Litigation, William T. Hangley wrote: A trial is a dramatic production, a morality play. Before any witness even begins testifying, the trial lawyer has served as the author, the producer, the director, and the stage manager of this one-time-only dramatic production. Hangley, Direct and the Director: Writing, Staging, and Telling the Story, 25 Litigation 20 (Fall 1998). Seeing the trial as a dramatic production, with the witnesses being the actors and the truth being the script, is essential to begin seeing how to develop a theme and make the case comprehensible to jurors. For at least 2500 years, dramatists have been able to present even very complicated factual scenarios in a short time and to enable the audience to determine, in a predictable way, who is the hero and who is the villain. Using timeworn techniques, a dramatist can compress an entire life into 90 minutes and allow the audience to determine not only what happened but to root for the hero and weep for the victim. Even the most complicated drama can be, and usually is, described by a short plot summary, which is typically just a few lines long. This plot summary is often used by potential audience members to determine if they even want to watch a particular show. For example, before deciding whether to see a particular movie, a person may ask a friend to describe what the movie is about. Such a description can typically be given in a very few declarative sentences. Consider, for example, the following description of Romeo and Juliet A tragedy by William Shakespeare about two star-crossed lovers whose passionate love for each other ends in death because of the senseless feud between their families. Hirsch, The Dictionary of Cultural Literacy 131 (1988). The very short summary identifies the victim (Romeo and Juliet), identifies the villain (the families) and explains the plot (two people loved each other and died because of a senseless feud) in a simple and straightforward manner. So what would be the simple theme of a murder case involving both a plea of innocence and the defenses of self-defense and temporary insanity? Consider the following The defendant was so terrified by a vicious attackers efforts to kill her that she cant really remember what happened in her efforts to stop his savagery. This theme identifies the victim (the defendant) and the villain (the deceased) and takes account of all the facts and legal theories, but does not require the jury to deal with inconsistent defenses or legal jargon. Virtually every case worth trying, no matter how complex, has facts that allow each side to present itself as the hero and the victim of the other sides misconduct. For example, suppose that the case involves a claim by a solo inventor, seeking damages

from a German corporation for infringement of a patent. Suppose further that there is evidence, as there often is, that the inventor took his idea to the corporation, which then used that idea in some way in the course of developing its own, very successful, product. The plaintiffs theme on these facts is obvious The plaintiff, a self-employed tinkerer, made a revolutionary invention, which was stolen by a foreign corporation that has used it to make extraordinary profits. If the case is worth trying, the defendant in such a case will also have a story to tell. That story might give rise to the following theme taking advantage of the very facts which seem to make the plaintiffs case so compelling A German corporation, which used its legendary engineering talent to develop and refine an incomplete and largely unworkable idea brought to it, is being held up by yet another greedy plaintiff seeking a windfall from the efforts of others. A good theme should: ! " " " " " " " " " " B. ! ! ! ! ! Have both a hero and a villain, with the client the hero and the adversary the villain. Describe a single outcome and a single cause. Avoid alternative theories or explanations. Seek to establish a proposition, not just to avoid the claims of the opponent. Seek to take advantage of the other sides strongest facts. Be a framework for viewing all of the evidence, no matter how complex.

Organizing the Presentation of the Case.

No matter what its theme, a drama is usually presented according to a format that was probably developed by the ancient Greeks. The format essentially consists of three parts (1) an introduction, in which the characters and their essential characteristics are identified, (2) the middle, in which the characters interact with each other and develop conflicts with each other, (3) the conclusion, in which the conflicts are resolved. This division is similar to the supposed old preachers advice for giving a good sermon Tell em what youre going to tell em, tell em and tell em what you told em. To make even the most complicated case intelligible to a jury, the presentation of the case should follow the theme and be structured similar to a play. There should be a clear introduction, middle and conclusion. The witnesses should be chosen and arranged for their abilities to provide the information needed in these three divisions.

1.

The Introduction.

The Introduction includes the opening statement and also includes background witnesses capable of identifying the client, the key witnesses and the acts that have generally given rise to the lawsuit. The goal of the introduction is to give the jury a framework in which to place the later evidence, to be able to see the essential goodness of the client and its cause and to begin to see why the client is the hero and the opponent the villain. a. Opening Statement

The lawyers job in opening statement is to enable the jury to see how the expected evidence supports the theme developed for the lawyers client. A good opening statement will tell the jury what the lawyer will prove and how she will prove it. If there will be several witnesses, the opening statement will identify them, perhaps even showing pictures of them to begin giving a human face to the client. If the case depends on a chronology, an opening statement may contain a calendar, showing the jury what events happened when. The opening statement should show how the testimony of each witness will support the clients theme and/or rebut the theme of the other side. If the evidence does not serve one of these purposes, it should be ignored in the opening statement and probably not be presented at all. b. Introductory Witnesses

The first witnesses called by either side in a trial should be considered part of the introduction, to introduce to the jury the client, the key witnesses and the issues which have brought the parties to court and in need of the jurys assistance in getting the client justice. Especially when the client is a corporation or a business, one key goal of the introductory witnesses is to begin to see that even corporations have histories and personalities and deserve to be treated with the same fairness as natural persons. Many lawyers instinctively ask individual clients to describe where and when they were born and to provide information about themselves. They know that jurors will use this information to identify with the clients cause. Those same lawyers may make no effort to elicit the same information about a corporate client. Even the largest corporation has a history, starting when it was very small. That history is often reflected in celebratory documents published by the company from time to time, complete with old photographs and praise for the founders. These documents may qualify as business records and can be used to give the company a history and a personality. Similarly, employees with a long tenure can testify about how the company became large over the years because of its history of serving customers, being innovative, etc. Some evidence of this kind is essential, early in a clients case, to give the jury a basis for connecting with the corporate client. So long as this type of evidence does not get out of hand, courts will usually allow it for the same reasons they allow lawyers to ask witnesses how many children they have.

Introductory witnesses should also identify the witnesses who will take the lead in telling the clients story. If a critical fact witness has a distinguished record with the company, his or her superior, while describing how the business is organized, could establish that fact. Finally, the introductory witnesses can describe generally the facts giving rise to the dispute, with a view toward developing the jurys understanding of their need for the jurys help. For example, in a patent case, the director of research and development could testify about the companys history of innovation and the number of patents it has received, including the one in suit. The director of marketing could talk about the importance to the company of the patented product and how successful it was until the defendant introduced its product. If possible, introductory witnesses should describe how the actions of the adversary have affected them and the groups for which they have responsibility. If some activity has caused people to be laid off, the best person to describe that may be the person who had to deliver that news. 2. The Middle Presenting Essential Factual Evidence.

After the introductory witnesses, the remaining factual witnesses constitute the middle of a well-organized case. These witnesses will present the essential factual details, which show the conflict from the clients point of view and present the facts necessary to support the clients theme. To the extent possible, the witnesses should be presented in some type of logical order. For example, if one witness provides testimony about an early part of the case, that witness should precede a witness testifying about a later time. If one witness has general testimony and anothers testimony is more specific, the more general witness should go first. Testimony should be presented if it is essential to the clients theme or to the legal issues in the case. Evidence that has no point in establishing the theme or meeting legal requirements has no point. Depositions and live testimony of adverse witnesses can be a key part of the presentation of evidence. If well done, the interrogation of an adverse or hostile witness, using the rules of cross-examination, can both establish elements of the clients case and rebut those of its adversary. Depositions can also be effective if carefully edited and presented with someone reading the part of the deponent. 3. The Conclusion.

The conclusion of a well-organized case clearly includes the closing argument. A good closing argument in a complex case has the same objective as the closing argument in any case to convince the jury to find in favor of the lawyers client. The conclusion also can include the testimony of experts and should include the instructions.

a.

Expert Testimony.

In trials involving complex scientific evidence, testimony of experts is often properly considered part of the conclusion, but is often not so treated. Under current rules, experts are usually allowed to take the facts of the case and relate them to the ultimate issues to be resolved by the jury. I have heard trial judges say that expert testimony, if effectively presented, allows the lawyer to make two closing arguments on the same facts. If the expert is able to give an effective summary of complex evidence, making at least its relationship to the case understandable to the average juror, the case may be won in the minds of the jury before the closing argument. Who is retained as an expert can therefore make a huge difference in whether the finder of fact even tries to understand the technology sufficiently to make a decision based on the evidence and not on preconceptions. From my experience, I believe the most effective expert in most situations is the one who is best at teaching complex principles to persons who dont necessarily want to learn them. Often, this is a college professor who teaches undergraduates. Such a professor may not have the experience to generate a curriculum vitae as impressive as might be found. However, the typical finder of fact will be adequately impressed by the mere fact that the expert has a Ph.D. in what appears to be a relevant field. Page after page of publications is often overkill. What is essential is that the expert at least appear willing and able to help the jurors understand the evidence, even if they do not actually understand it. A juror who believes that the expert is making a sincere effort to make the evidence understandable may well simply assume that the expert must be telling the truth and find in favor of the client for whom he or she is testifying. On the other hand, an expert who cannot convince jurors that he or she really wants them to understand the evidence may be disbelieved for that reason alone. b. Instructions.

The last opportunity a trial lawyer has to communicate with the jury before it begins its deliberation is not the closing argument. Instead, it is when the judge reads the instructions that the lawyer has succeeded in having read. The importance of the instructions to the jurys actual decision is frequently overlooked, primarily because the instructions are so often totally unintelligible to the average juror. However, in a case in which the instructions were intentionally designed to relate to the theme of the case in language understandable by laymen, jurors said afterward that they ruled against the plaintiff, even though they found him sympathetic, because they thought the judge instructed them to do so. The instructions are therefore properly considered to be not only part of the trials conclusion, but potentially a very important part.

C.

Presenting the Evidence and the Legal Issues.

A trial which is comprehensible to a jury is one that relates the issues to the jurys experience, allows the jurors to learn as the trial progresses, does not use confusing terminology and takes full advantage of every opportunity to show and tell. A comprehensible trial begins at least with the opening statement and continues through the instructions. 1. Avoiding Jargon in the Opening Statement.

Despite substantial evidence to the contrary, the lawyers job in opening statement is not to tell the jury about the types of evidence, to explain the difference between various degrees of proof or to talk about the case in legal terms found in the pleadings. I have heard experienced trial lawyers waste much time in opening statement telling the jury the difference between circumstantial evidence and direct evidence. Especially at this early stage of a trial, the jury is interested only in finding out what the case is about and what they should be looking for to determine who is the hero and who is the villain. Some lawyers feel compelled to tell the jury in opening statement about their burdens of proof and that of their adversary and refer to scales barely tipping to one side. Again, this is pointless and potentially counterproductive. In the first place, the typical juror may not even understand the phrase burden of proof, associating burden with something unpleasant. More important, most cases are won because the jury actually believes in one or the other sides of a case, not to what degree that side has proven its case. Juries do not typically think in terms of how likely it is that one side or the other has done something, but whether they have in fact done it. Suggesting that the jury should find for the lawyers client if it finds the scale barely tipping in that direction is likely to cause the juror to believe, even before the first witness is called, that the event did not actually happen. Similarly, it is not only pointless, but also potentially disastrous, in an opening statement to talk to jurors about legal concepts they know absolutely nothing about. For example, suppose a defendant has pleaded the affirmative defense of waiver. It makes no sense to tell this to the jury in the opening statement. The word waiver, in the legal sense, has no meaning to a typical juror, who might associate it with wavering or waving or waivers of professional athletes or other things having nothing to do with the case, but having negative connotations. Similarly, the phrase affirmative defense sounds like a contradiction in terms and certainly does not connote anything very positive. Instead, if the facts support an affirmative defense, they can often be presented in a positive way, making clear who is the hero and who is the victim. Consider, for example, the following statement of facts supporting waiver The evidence will show that the plaintiff misled the defendant into continuing to act as it did by not complaining and then sued only after it no longer needed the defendants services. This articulation

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of the defense makes the defendant the victim and the plaintiff the villain. More important, it tells the jury what evidence to look for without having to know anything about affirmative defenses or waivers. 2. Presenting Scientific Evidence.

Most people who decide complex scientific cases either have or claim to have no technical aptitude or knowledge. For example, many jurors, like the rest of us, will readily admit that they cannot program their VCR, but they may be expected to decide cases about who invented the programming technology. Jurors unable to change a flat tire may have to decide if a race tire was defective because it blew out at 250 miles an hour. Although most juries will never understand science and technology at the level of experts in the field, it is a mistake to assume that they cannot fairly resolve cases involving those subjects. Even the most complex subject can usually be related to the jurys experience, allowing it to make sound judgments in cases involving those subjects. a. Relating Technical Evidence to the Jurors Experiences.

Most experienced trial lawyers know that jurors tend to decide cases through the prism of their experiences and will reject evidence that does not conform to their view of the world. However, those same lawyers typically make no effort to use that principle when presenting technical evidence, often presenting the technical evidence as beyond the comprehension of everyone in the courtroom except the experts. It is not surprising that juries in these cases cant relate the cases to their experience and rely on prejudices in deciding the issues. To prevent this result, the trial lawyer must at least try to relate even the most complex science to the common experiences of the jury. This is not an impossible task. Virtually every scientific principle, no matter how complicated or esoteric, can be related to events or items within the experience of most judges and jurors. In fact, some of the most complicated and counter-intuitive scientific principles originally came from observations and thoughts about common experiences. For example, it is said that Isaac Newton developed his ideas about gravity after watching an apple fall from a tree. On much sounder factual ground are the thought experiments that Albert Einstein conducted that involved trains and elevators. From the insights he gained from thinking about how a beam of light would appear to passengers using these common machines, Einstein formulated his famous special theory of relativity. To this day, most explanations of this amazing theory start with an observation about how people in a stalled train may incorrectly think they are moving when a train on an adjacent track begins to move. Building on this simple and common observation, the theorys entirely unintuitive conclusion that time slows down the faster a person travels can at least be grounded in reality.

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Similarly, the invisible transmission of electromagnetic energy is often described by the term waves, because the propagation of such energy through space is similar to the transmission of energy in ocean waves, in which the energy moves toward shore while the water itself moves primarily up and down. Invisible electromagnetic waves are much more real, even for scientists, when they can be thought of in concrete and familiar terms. Similarly, it is no coincidence that the structure of an atom is usually, even if not accurately, depicted as involving spherical electrons arranged in multiple orbits revolving around a nucleus, much as the planets revolve around the sun. The familiar model of the solar system allowed scientists to visualize atoms they would never see and to communicate their visions to others. That image was so powerful that it is used today even though the word orbits is accurate only as a rough metaphor for the various energy levels that electrons possess from time to time. For many people in this country, scientific discoveries are often frightening and their conclusions resisted. However, once they have gotten accustomed to a particular application of a principle, even dramatic changes are more easily accepted. For example, most jurors have no clue about how a black and white television receiver works. However, when they have experienced black and white television, color television, which is much more complex, does not seem all that mysterious. Similarly, the first airplane was considered a miracle. The jet plane, dramatically more sophisticated, was considered just a better airplane. The teaching of scientific principles to a jury should therefore allow the jury itself to have a sense that the science in question is merely a logical extension of what they already know. The jury should not be forced to accept, in the course of a short trial, scientific principles for which they have no antecedent. This can often be accomplished by starting the scientific story years, even decades, before the events in question, depending on how well known are the principles and the terminology. For example, consider a modern case involving gene splicing. The scientific story could start with describing the chemistry of a strand of DNA and discussing the sequences of bases that make up a particular gene. Starting at this point will lose the typical juror, who does not associate genes with DNA, but at most associates them in a vague way with why a child has the eye color of its parent. Consequently, to relate the case to the jurors experiences, the scientific story might start with the significance of genes in inherited characteristics, possibly starting with the familiar story of Mendels peas. It would continue through the discovery of DNA, then to the discovery of individual genes within the DNA and then to the efforts to determine the function of particular genes. In this way, the idea of a gene as a sequence of chemicals will make more sense and will be more likely to be accepted and comprehended. Similarly, in a case involving ultrasonics, the term ultrasonic may be associated in the minds of the typical juror entirely with toothbrushes. Microwave may be seen as a synonym for oven, transistor as a type of radio, etc. To avoid losing the jury even before the evidence has been presented because the terminology does not resonate with their experience, the technology should be grounded in the jurors experience, with the

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more esoteric uses of that technology explained as improvements or enhancements of what is known. In communicating scientific and technical principles to juries (and judges), the lawyer must strive to be able to relate the underlying principles to the jurors experience, using analogies of the sort used to describe electromagnetic radiation or atomic structure or the theory of relativity. A juror hearing such analogies may never truly understand the science, but will believe that the lawyer is at least trying to make it understandable. A juror who believes a lawyer does not want him or her to understand is likely not to believe that lawyer. On the other hand, a juror who believes the lawyer wants him or her to understand may side with the lawyer or the client even if the technology ultimately proves to be incomprehensible. b. Avoiding Technical Jargon.

Rather than attempting to relate complex principles to the common experience of jurors, many scientists and engineers, including those called as experts, often have a habit of describing even relatively straightforward ideas in opaque and unnecessary terms. For example, the relationship of one alternating electrical signal to another can be described by the fairly simple concept of phase, which essentially measures the distance between peaks of the waves. Especially when related to the peaks of ocean waves, most lay persons can at least begin to understand this concept. However, for years, electrical engineers have tended to describe phase relationships by reference to a term they call j omega, which is the frequency of the signal multiplied by j (or i), which stands for the entirely imaginary and largely unimaginable square root of 1. This somewhat bizarre convention derives from a short hand way of making calculations involving alternating signals, but adds nothing but confusion to the ability to understand actual phase relationships. The first job of the lawyer trying to explain complex scientific principles to a jury or to a lay judge is for the lawyer to try to understand the basic principles, divorced from the jargon and shorthand that may have become encrusted upon them by the experts. This certainly does not require that the lawyer actually have expertise in the scientific area involved. Detailed knowledge of underlying scientific principles is almost never essential to being able to help others understand the application of those principles. For example, I doubt that all grade school teachers understand why the classic technique for long division works, but they have certainly been successful in teaching that technique to others. What the lawyer must understand is the terminology so that he or she can ask questions of the true experts essential to being able to find the right analogies to relate the principle to common experiences. For example, immunologists speak of antigens and of antibodies that are specific to particular antigens. The fact that these words both begin with anti only adds to the confusion in trying to explain immunological concepts. However, a lawyer who understands the terminology and the basic principles can analogize the actions of antibodies to microscopic keys floating in the bloodstream,

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capable of unlocking only particular locks (antigens). Although imperfect, the analogy is close enough to be used by scientists and will help the lay fact finder tie the concepts to concrete experiences. Lawyers untrained in science can learn basic terminology and principles from various publications designed to explain things to lay persons, ranging from How Things Work books to undergraduate textbooks to encyclopedias. Armed with that information, they can discuss the specific issues with experts in the subject to see if their analogies are accurate and to develop a plan for presenting the principles to the fact finder. When the client is a business using the technology, the client will typically have experts who can help the lawyer understand the principles and help develop ways to explain it to others. c. Showing and Telling.

Repeated studies have shown that most people learn and understand much better when they are shown something at the same time they are being told about it. I once saw a demonstration in which one person tried to tell another how to tie a necktie. Until the teacher was able to demonstrate what he was saying, the student simply could not learn the technique. The way the typical person receives information today makes it particularly important that trials, especially those involving complex subjects, show the jury while it is being told. People today get most of their information from television and even the most conservative newspapers and magazines now include many colorful charts and photographs. A trial using only words is unlikely to teach much to a juror used to receiving information visually. Visual evidence often takes the form of so-called demonstrative evidence, a term that may include items which are not truly evidence at all. In cases involving complex technical issues, models, charts, animation and photographs can all be used to help the jury understand what it is being told. 3. Drafting Helpful Instructions.

Many lawyers ignore the importance of instructions to the jurys resolution of the case, treating them as merely statements of law to use on appeal if the jury reaches an adverse result. Consequently, most instructions are drafted using obscure language from appellate decisions, with no idea that the jury can or will follow them. Many instructions either use terminology which is unknown or which contradicts a jurors own sense of the meaning of a crucial term. Consequently, jurors may ignore the instructions entirely simply because they dont understand them, when they would have followed clearer instructions in arriving at a different verdict. Consider, for example, the Indiana Pattern Instruction on the meaning of the term contract A contract is an agreement between two or more persons that arises from an

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offer made by one and acceptance of that offer by another. Indiana Pattern Jury Instructions Civil 33.01 (2d ed. 1989). Offer and acceptance are law school terms, unknown in this context by most jurors, who are likely to associate acceptance with being liked by peers and offer with something that is free. Defining a legal concept using further unfamiliar legal terms virtually guarantees that the jury will ignore any instructions involving the term and rely on their own definition. For example, the typical juror, based on his or her experience and common lore, often believes that contracts are enforceable only if in writing and signed by both parties. In fact, one of the definitions of the term contract is [t]he written form of [an enforceable] agreement. Websters New Universal Unabridged Dictionary 440 (1996). If the definition of contract given in a case involving a claimed oral contract uses unfamiliar terminology and does not expressly say that oral contracts can be enforceable, the jury will probably rely on its own definition and reject an oral contract even if proven. No law requires that instructions be written in the language of appellate decisions or use archaic legal jargon. Many do simply because lawyers do not take the time to understand the law well enough to draft an understandable statement of it. When they do, most courts will give it unless the other side can point to inaccuracies. Consider, for example, the following definition of the term contract: A contract is an agreement between two or more persons that courts can enforce. A contract can be made in various ways, including signing a document, shaking hands, and expressing words to each other. What makes a contract enforceable is that the parties have agreed between themselves either to do something or not to do something. This definition, which is similar to one included in a contract case tried in federal court in Indianapolis, gives the jury all the information it needs about the definition of the term contract. Other issues, such as the statute of frauds, consideration, offer and acceptance, can be defined if they become issues in the case. If instructions are understandable and consistent with the theme of the case, they may appear to the jury to be messages from the judge about how to resolve the case in favor of the client that sponsored them. If the instructions are incomprehensible, as they usually are, the jury will be forced to use its own ideas of justice. If the result is irrational in light of the law, the lawyer and not the jury is primarily responsible. Finally, even the best instructions and closing argument may fail if the jury does not know what to do with a complex verdict form. If the verdict form requires that the jury answer questions, the lawyer, in closing argument, should tell the jury the answers to those questions, based on the evidence. A blow-up of the verdict form, with desired answers marked, can be very effective.

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