In Re: Standard Jury Instructions in Civil Cases-Report No. 17-03. , 236 So. 3d 919 ( 2018 )

Supreme Court of Florida
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No. SC17-1060
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IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES —
REPORT NO. 17-03.
[February 1, 2018]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Civil Cases
(Committee) has submitted proposed changes to the standard jury instructions and
asks that the Court authorize the amended standard instructions for publication and
use. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amendments to instructions 202.3 (Note-Taking by
Jurors), 401.21 (Burden of Proof on Main Claim), 401.23 (Burden of Proof on
Defense Issues), 402.13 (Burden of Proof on Main Claim), 402.15 (Burden of
Proof on Defense Issues), 409.12 (Burden of Proof on Defense Issues), 412.8
(Issues on Claim and Burden of Proof), 412.9 (Defense Issue), 501.4 (Comparative
Negligence, Non-Party Fault and Multiple Defendants), 502.5 (Comparative
Negligence, Non-Party Fault and Multiple Defendants), Section 700 — Closing
Instructions, Model Instruction Nos. 1-6, and Model Verdict Forms 1 and 5(c).
The Committee’s proposals were published in The Florida Bar News and no
comments were received addressing the Committee’s proposals.1 The Court did
not publish the Committee’s proposals.2
The more significant amendments to the instructions are discussed below.3
Instructions 401.21, 401.23, 402.13, 402.15, 409.12, 412.8, and 412.9, and
Model Verdict Forms 1 and 5(c) are amended to change the language “caused by”
to “apportion to each,” on the basis that the instructions and verdict forms as
presently authorized are inconsistent with the jury instructions on legal causation
and comparative fault. The jury instructions define legal causation in relation to
damages and not negligence, fault, or responsibility.
Instructions 501.4 and 502.5 are amended to ensure consistency between the
two instructions. Both instructions address comparative negligence, non-party
fault, and multiple defendants, in personal injury and property damages cases and
in wrongful death damages cases, respectively. Specifically, language detailing
1. Proposals to amend instructions 202.3 and Section 700 were not
published because the proposed changes were not substantive.
2. Minor, technical changes to the instructions are not elaborated upon.
3. All of the amendments to the jury instructions also apply to Model
Instructions 1 through 6.
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what the trial court will do based upon the verdict is replaced by the sentence “The
court in entering judgment will make any appropriate reduction(s).”
Having considered the Committee’s report, we authorize the Committee’s
proposals for publication and use as set forth in the appendix to this opinion. New
language is indicated by underlining and deleted language is indicated by struck-
through type. In authorizing the publication and use of these instructions, we
express no opinion on their correctness and remind all interested parties that this
authorization forecloses neither requesting additional or alternative instructions nor
contesting the legal correctness of the instructions. We further caution all
interested parties that any comments associated with the instructions reflect only
the opinion of the Committee and are not necessarily indicative of the views of this
Court as to their correctness or applicability. The instructions as set forth in the
appendix shall become effective when this opinion becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Civil Cases
Rebecca Mercier Vargas, Chair, Supreme Court Committee on Standard Jury
Instructions in Civil Cases, West Palm Beach, Florida, and Laura K. Whitmore,
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Vice Chair and Subcommittee Chair, Filing Subcommittee of the Supreme Court
Committee on Standard Jury Instructions in Civil Cases, Tampa, Florida,
for Petitioner
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APPENDIX
202.3 NOTE-TAKING BY JURORS
If you would like to take notes during the trial, you may do so. On the
other hand, of course, you are not required to take notes if you do not want to.
That will be left up to you individually.
You will be provided with a note pad and a pen for use if you wish to
take notes. Any notes that you take will be for your personal use. However,
you should not take them with you from the courtroom. During recesses, the
bailiff will take possession of your notes and will return them to you when we
reconvene. After you have completed your deliberations, the bailiff will
deliver your notes to me. They will be destroyedcollect your notes, which will
be immediately destroyed. No one will ever read your notes.
If you take notes, do not get so involved in note-taking that you become
distracted from the proceedings. Your notes should be used only as aids to
your memory.
Whether or not you take notes, you should rely on your memory of the
evidence and you should not be unduly influenced by the notes of other jurors.
Notes are not entitled to any greater weight than each juror’s memory of the
evidence.
NOTES ON USE FOR 202.3
1. The court should furnish all jurors with the necessary pads and pens
for taking notes. Additionally, it may be desirable for jurors to be furnished with
envelopes to place the notes for additional privacy.
2. Fla.R.Jud.Admin.Florida Rule of Judicial Administration 2.430(k)
provides that at the conclusion of the trial, the court shall collect and immediately
destroy all juror notes.
3. Fla.R.Civ.P.Florida Rule of Civil Procedure 1.455 provides that the
trial court may, in its discretion, authorize the use of juror notebooks to contain
documents and exhibits as an aid to the jurors in performing their duties.
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4. When it is impractical to take exhibits into the jury room, this
instruction should be modified to describe how the jury will have access to the
exhibits.
401.21 BURDEN OF PROOF ON MAIN CLAIM
If the greater weight of the evidence does not support [one or more of]
(claimant’s) claim[s], your verdict should be for (defendant)(s) [on [that] [those]
claim(s)].
[However, if the greater weight of the evidence supports [one or more
of] (claimant’s) claim[s], then your verdict should be for (claimant) and against
(defendant) [on [that] [those] claim(s).]
[However, if the greater weight of the evidence supports (claimant’s)
claim against one [or] [both] [more] of the defendants, then you should decide
and write on the verdict form the percentage of the total negligence of [both]
[all] defendants that was caused by each of themyou apportion to each of
them.]
NOTE ON USE FOR 401.21
Use the first paragraph in all cases. If there is an affirmative defense to the
claim that is the subject of the instruction, do not use either of the bracketed
paragraphs; instead, turn to instruction 401.22. If there is no affirmative defense,
use the first or the second bracketed paragraph depending on whether there is one
defendant or more than one.
401.23 BURDEN OF PROOF ON DEFENSE ISSUES
If the greater weight of the evidence does not support (defendant’s)
defense[s] and the greater weight of the evidence does support (claimant’s)
claim, then [your verdict should be for (claimant) in the total amount of [his]
[her] damages] *[you should decide and write on the verdict form what
percentage of the total negligence of [both] [all] defendants was caused by
each defendantyou apportion to each defendant whose negligence you find
was a legal cause of loss, injury, or damage to (claimant)].
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*Use second bracketed alternative above when there is more than one
defendant.
If, however, the greater weight of the evidence shows that both
(claimant) and [(defendant)] [one or more of (defendants)] were negligent and
that the negligence of each contributed as a legal cause of [loss] [injury] [or]
[damage] sustained by (claimant), you should decide and write on the verdict
form what percentage of the total negligence of [both] [all] parties to this
action was caused by each of themyou apportion to each of them.
Use the following instruction in cases with a comparative negligence
defense and an apportionment of a non-party defense:
If, however, the greater weight of the evidence shows that (claimant) and
[(defendant)] [one or more of (defendants)] and (identify additional person(s) or
entit(y)(ies)) were negligent and that the negligence of each contributed as a
legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should
decide and write on the verdict form what percentage of the total negligence
of [both] [all] parties to this action and (identify additional person(s) or
entit(y)(ies)) was caused by each of themyou apportion to each of them.
Use the following instruction in cases without a comparative negligence
defense but with an apportionment of a non-party defense:
If, however, the greater weight of the evidence shows that [(defendant)]
[one or more of (defendants)] and (identify additional person(s) or entit(y)(ies))
were negligent and that the negligence of each contributed as a legal cause of
[loss] [injury] [or] [damage] sustained by (claimant), you should decide and
write on the verdict form what percentage of the total negligence of
[(defendant)] and (identify additional person(s) or entit(y)(ies)) was caused by
each of themyou apportion to each of them.
NOTES ON USE FOR 401.23
1. Preemptive instructions on defense issues. If a preemptive instruction
for claimant is appropriate on a defense issue, as when comparative negligence or
assumption of risk has been brought to the jury’s attention on voir dire or by
opening statements or argument and is now to be withdrawn, an instruction in the
form of instruction 401.13 should be given immediately following instruction
401.21. If a preemptive instruction for defendant is required on some aspect of a
defense, as when, for example, the court holds that any comparative negligence of
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the driver will reduce claimant’s recovery, a preemptive instruction announcing the
ruling should be given immediately after framing the defense issues (instruction
401.22a).
2. Instructions on issues raised by replies to affirmative defenses.
Plaintiff bears the burden of proof on issues raised by any replies to affirmative
defenses, and instruction 401.23 should be modified as appropriate for those
issues.
402.13 BURDEN OF PROOF ON MAIN CLAIM
If the greater weight of the evidence does not support [one or more of]
(claimant’s) claim(s), then your verdict should be for (defendant)(s) [on [that]
[those] claim(s)].
[However, if the greater weight of the evidence supports [one or more
of] (claimant’s) claim(s), then your verdict should be for (claimant) and against
(defendant)(s) [on [that] [those] claim(s).]
[However, if the greater weight of the evidence supports (claimant’s)
claim against one [or] [both] [more] of the defendants, then you should
determine and write on the verdict form what percentage of the total
negligence of [both] [all] defendants was caused by each of themyou apportion
to each of them.]
NOTE ON USE FOR 402.13
Use the first paragraph in all cases. If there is an affirmative defense to the
claim that is the subject of the charge, do not use either of the bracketed
paragraphs; instead, use instruction 402.14. If there is no affirmative defense, use
the first or the second bracketed paragraph depending on whether there is one
defendant or more than one, then proceed to Damages.
402.15 BURDEN OF PROOF ON DEFENSE ISSUES
If the greater weight of the evidence does not support (defendant’s)
defense[s] of (describe defense) and the greater weight of the evidence supports
(claimant’s) claim, then [your verdict should be for (claimant) in the total
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amount of [his] [her] damages] [you should determine and write on the
verdict form what percentage of the total negligence of [both] [all] defendants
was caused by each defendantyou apportion to each defendant whose
negligence you find was a legal cause of loss, injury, or damage to (claimant)].*
*Use second bracketed alternative above when there is more than one
defendant.
If, however, the greater weight of the evidence shows that both
(claimant) and [(defendant)] [one or more of (defendants)] [was] [were]
negligent and that the negligence of each contributed as a legal cause of [loss]
[injury] [or] [damage] sustained by (claimant), you should decide and write on
the verdict form what percentage of the total negligence of [both] [all] parties
to this action was caused by each of themyou apportion to each of them.
Use the following instruction in cases with a comparative negligence
defense and an apportionment of a nonparty defense:
[If, however, the greater weight of the evidence shows that (claimant)
and [(defendant)] [one or more of (defendants)] and (identify additional person(s)
or entit(y)(ies)) were negligent and that the negligence of each contributed as a
legal cause of [loss] [injury] [or] [damage] sustained by (claimant), you should
decide and write on the verdict form what percentage of the total negligence
of [both] [all] parties to this action and (identify additional person(s) or
entit(y)(ies)) was caused by each of themyou apportion to each of them.]
Use the following paragraph in cases without a comparative negligence
defense but with an apportionment of nonparty defense:
[If, however, the greater weight of the evidence shows that [(defendant)]
[one or more of (defendants)] and (identify additional person(s) or entit(y)(ies))
were negligent and that the negligence of each contributed as a legal cause of
[loss] [injury] [or] [damage] sustained by (claimant), you should decide and
write on the verdict form what percentage of the total negligence of
[(defendant)] and (identify additional person(s) or entit(y)(ies)) was caused by
each of themyou apportion to each of them.]
NOTES ON USE FOR 402.15
1. Preemptive charges on defense issues. If a preemptive charge for
claimant is appropriate on a defense issue, as when comparative negligence has
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been brought to the jury’s attention on voir dire or by opening statements or
argument and is now to be withdrawn, an instruction in the form of 402.8 should
be given immediately following instruction 402.13. If a preemptive charge for
defendant is required on some aspect of a defense, as when the court holds that
comparative negligence will reduce claimant’s recovery, a preemptive charge
announcing the ruling should be given immediately after framing the applicable
defense issue.
2. Charges on issues raised by replies to affirmative defenses. Plaintiff
bears the burden of proof on issues raised by any replies to affirmative defenses,
and instruction 402.15 should be modified as appropriate for those issues.
409.12 BURDEN OF PROOF ON DEFENSE ISSUES
If the greater weight of the evidence does not support (defendant’s)
defense[s] and the greater weight of the evidence supports [one] [or] [more of]
(claimant’s) claim[s], then your verdict should be for (claimant) in the total
amount of [his] [her] [its] damages.
However, if the greater weight of the evidence shows that both
(claimant) and [(defendant)] [one or more of the defendants] were negligent
and that the negligence of each contributed as a legal cause of [loss] [injury]
[or] [damage] sustained by (claimant), you should determine what percentage
of the total negligence of [both] [all] parties to this action was caused by
eachyou apportion to each of them.
412.8 ISSUES ON CLAIM AND BURDEN OF PROOF
The issues for you to decide on (claimant’s) claim are whether (defendant
or person for whose negligence defendant is responsible) was negligent in
(describe negligence) and, if so, whether such negligence was a legal cause of
injury and damage to (name).
If the greater weight of the evidence does not support the claim of
(claimant) [against a particular defendant], your verdict should be for [that]
defendant.
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[However, if the greater weight of the evidence supports the claim of
(claimant) you should also determine whether the amount of money paid by
(claimant) to (name) was reasonable under all the circumstances shown by the
evidence. If the greater weight of the evidence shows that the amount of
money paid by (claimant) to (name) in settlement did not exceed a reasonable
amount under all the circumstances, you should so find by your verdict.
However, if the amount of money paid by (claimant) to (name) exceeded a
reasonable amount, you should determine the amount which would have been
reasonable under all the circumstances for (claimant) to pay (name) in
settlement. The court will then determine the amount that (claimant) will
recover from (defendant).]
[You should also determine by your verdict what percentage of the total
negligence of [both] [all] parties to this action (name them) was caused by
eachyou apportion to each of them. The court will then determine the amount
of (claimant’s) recovery.]
NOTES ON USE FOR 412.8
1. Use the first two paragraphs in all cases. Use the first bracketed
paragraph if there is an issue about the reasonableness of the amount paid in
settlement. This instruction assumes that the burden of proving reasonableness —
that the settlement paid the injured party was, under the circumstances, reasonable
— is on the claimant.
2. If there is an issue about the reasonableness of the amount paid, use
the applicable provisions of section 501 or 502 to describe the available elements
of damage. See Model Instruction No. 5.
412.9 DEFENSE ISSUE
If, however, the greater weight of the evidence supports (claimant’s)
claim, then you shall consider the defense raised by (defendant). The issue for
you to decide on that defense is whether (claimant) intentionally, willfully,
wantonly or with reckless indifference to the rights of others caused or
contributed to causing the injury of (name).
If the greater weight of the evidence supports that defense, then your
verdict should be for (defendant). If, however, the greater weight of the
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evidence does not support that defense and does support (claimant’s) claim,
your verdict should be for (claimant) and you should determine by your
verdict what percentage of the total negligence of (name the parties other than
the injured plaintiff) was caused by eachyou apportion to each of them.
501.4 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT, AND
MULTIPLE DEFENDANTS
In determining the total amount of damages, you should not make any
reduction because of the negligence, if any, of (claimant) or (defendant(s)). The
court will enter a judgment based on your verdict and, if you find that
(claimant) was negligent in any degree, the court in entering judgment will
reduce the total amount of damages by the percentage of negligence which
you find was caused by (claimant).The court in entering judgment will make
any appropriate reduction(s).
[The court will also take into account, in entering judgment against any
defendant whom you find to have been negligent, the percentage of that
defendant’s negligence compared to the total negligence of all the parties to
this action.]*
*Use the bracketed paragraph above only when there is more than one
defendant; the reference to “responsibility” in this additional instruction is
designed for use in strict liability cases.
When a Fabre issue is involved:
In determining the total amount of damages, you should [also] not make
any reduction because of the [negligence] [fault], if any, of (identify any
additional person or entity who will be on verdict form). The court in entering
judgment will [also] take into account your allocation of [negligence] [fault]
among all persons [or entities] who you find contributed to (claimant’s)
damages.The court in entering judgment will make any appropriate
reductions.
NOTE ON USE FOR 501.4
When the jury is instructed to apportion fault, and a Fabre issue is involved,
see Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), and Nash v. Wells Fargo
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Services, Inc., 678 So. 2d 1262 (Fla. 1996). The third paragraph of this instruction
should be used to inform the jury of the appropriate procedure, so that the jury
does not make inappropriate adjustments to its verdict. There is support for giving
a special instruction explaining to the jury the impact and effect of an F.S. 768.81
apportionment of liability in such cases. See Slawson v. Fast Food Enterprises,
671 So. 2d 255, 260 (Fla. 4th DCA 1996); Seminole Gulf Railway, Limited
Partnership v. Fassnacht, 635 So. 2d 142, 144 (Fla. 2d DCA 1994) (Altenbernd, J.,
concurring in part and dissenting in part). Pending further development in the law,
the committee takes no position on this issue.
502.5 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT,
AND MULTIPLE DEFENDANTS
In determining the total amount of damages to (decedent’s) estate and
[his] [her] survivors as a result of [his] [her] injury and death, you should not
make any reduction because of the negligence, if any, of (decedent or survivor
or any other person). The court will enter a judgment based on your verdict
and, if you find that (decedent or survivor or any other person) was negligent in
any degree, the court in entering judgment will reduce the total amount of
damages by the percentage of negligence which you find was caused by
(decedent or survivor or any other person).The court in entering judgment will
make any appropriate reduction(s).
[The court will also take into account, in entering judgment against any
defendant whom you find to have been negligent, the percentage of that
defendant’s negligence compared to the total negligence of all the parties to
this action.]*
*Use the bracketed paragraph above only when there is more than one
defendant; the reference to “responsibility” in this additional instruction is
designed for use in strict liability cases.
When a Fabre issue is involved:
In determining the total amount of damages, you should [also] not make
any reduction because of the [negligence] [fault], if any, of (identify any
additional person or entity who will be on verdict form). The court in entering
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judgment will [also] take into account your allocation of [negligence] [fault]
among all persons [or entities] who you find contributed to (decedent or
survivor or any other person’s) damages.The court in entering judgment will
make any appropriate reduction(s).
NOTES ON USE FOR 502.5
1. When the jury is instructed to apportion fault and a Fabre issue is
involved, see Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), and Nash v. Wells
Fargo Services, Inc., 678 So. 2d 1262 (Fla. 1996). The third paragraph of this
instruction should be used to inform the jury of the appropriate procedure, so the
jury does not make inappropriate adjustments to its verdict. There is support for
giving a special instruction explaining to the jury the impact and effect of F.S.
768.81 apportionment of liability in such cases. See Slawson v. Fast Food
Enterprises, 671 So. 2d 255, 260 (Fla. 4th DCA 1996); Seminole Gulf Railway
Limited Partnership v. Fassnacht, 635 So. 2d 142, 144 (Fla. 2d DCA 1994)
(Altenbernd, J., concurring in part and dissenting in part). Pending further
development in the law, the committee takes no position on this issue.
2. The personal representative of the decedent’s estate is the only
appropriate party to bring a wrongful death claim, and the decedent’s comparative
fault, if any, will reduce the total recovery of the personal representative. However,
it may also be necessary to have a specific determination by the jury of the
survivor’s comparative negligence, which would be applied only to reduce that
survivor’s recovery. See F.S. 768.20; Frazier v. Metropolitan Dade County, 701
So. 2d 418 (Fla. 3d DCA 1997); Childers v. Schachner, 612 So. 2d 699 (Fla. 3d
DCA 1993); Gurney v. Cain, 588 So. 2d 244 (Fla. 4th DCA 1991).
SECTION 700 — CLOSING INSTRUCTIONS
Members of the jury, you have now heard all the evidence, my
instructions on the law that you must apply in reaching your verdict and the
closing arguments of the attorneys. You will shortly retire to the jury room to
decide this case. [Before you do so, I have a few last instructions for you.]
During deliberations, jurors must communicate about the case only
with one another and only when all jurors are present in the jury room. You
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will have in the jury room all of the evidence that was received during the
trial. In reaching your decision, do not do any research on your own or as a
group. Do not use dictionaries, the Internet, or any other reference materials.
Do not investigate the case or conduct any experiments. Do not visit or view
the scene of any event involved in this case or look at maps or pictures on the
Internet. If you happen to pass by the scene, do not stop or investigate. All
jurors must see or hear the same evidence at the same time. Do not read, listen
to, or watch any news accounts of this trial.
You are not to communicate with any person outside the jury about this
case. Until you have reached a verdict, you must not talk about this case in
person or through the telephone, writing, or electronic communication, such
as a blog, twitter, e-mail, text message, or any other means. Do not contact
anyone to assist you, such as a family accountant, doctor, or lawyer. These
communications rules apply until I discharge you at the end of the case.
If you become aware of any violation of these instructions or any other
instruction I have given in this case, you must tell me by giving a note to the
bailiff.
Any notes you have taken during the trial may be taken to the jury
room for use during your discussions. Your notes are simply an aid to your
own memory, and neither your notes nor those of any other juror are binding
or conclusive. Your notes are not a substitute for your own memory or that of
other jurors. Instead, your verdict must result from the collective memory
and judgment of all jurors based on the evidence and testimony presented
during the trial.
At the conclusion of the trial, the bailiff will collect all of your notes, and
immediately destroy themwhich will be immediately destroyed. No one will
ever read your notes.
In reaching your verdict, do not let bias, sympathy, prejudice, public
opinion, or any other sentiment for or against any party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.
Reaching a verdict is exclusively your job. I cannot participate in that
decision in any way and you should not guess what I think your verdict should
be from something I may have said or done. You should not think that I
prefer one verdict over another. Therefore, in reaching your verdict, you
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should not consider anything that I have said or done, except for my specific
instructions to you.
Pay careful attention to all the instructions that I gave you, for that is
the law that you must follow. You will have a copy of my instructions with you
when you go to the jury room to deliberate. All the instructions are important,
and you must consider all of them together. There are no other laws that
apply to this case, and even if you do not agree with these laws, you must use
them in reaching your decision in this case.
When you go to the jury room, the first thing you should do is choose a
presiding juror to act as a foreperson during your deliberations. The
foreperson should see to it that your discussions are orderly and that everyone
has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself, but
only after you have considered the evidence with the other members of the
jury. Feel free to change your mind if you are convinced that your position
should be different. You should all try to agree. But do not give up your
honest beliefs just because the others think differently. Keep an open mind so
that you and your fellow jurors can easily share ideas about the case.
[I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these
questions. You must follow my instructions and the form carefully. You must
consider each question separately. Please answer the questions in the order
they appear. After you answer a question, the form tells you what to do next. I
will now read the form to you: (read form of verdict)]
[You will be given (state number) forms of verdict, which I shall now
read to you: (read form of verdict(s))]
[If you find for (claimant(s)), your verdict will be in the following form:
(read form of verdict)]
[If you find for (defendant(s)), your verdict will be in the following form:
(read form of verdict)]
Your verdict[s] must be unanimous, that is, your verdict must be agreed
to by each of you. When you have [agreed on your verdict[s]] [finished filling
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out the form[s]], your foreperson must write the date and sign it at the bottom
and return the verdict[s] to the bailiff.
If any of you need to communicate with me for any reason, write me a
note and give it to the bailiff. In your note, do not disclose any vote or split or
the reason for the communication.
You may now retire to decide your verdict[s].
NOTES ON USE FOR 700
1. When final instructions are read to the jury before the attorney’s
closing arguments, this instruction should not be given at that time. It should be
given following closing arguments, just before the jury retires to deliberate. If,
however, the entire instruction is given after final arguments, omit the bracketed
sentence in the first paragraph.
2. Florida Rule of Judicial Administration 2.451 governs jurors’ use of
electronic devices. Rule 2.451(b)(1) requires the trial court to remove cell phones
and other electronic devices from jurors during their deliberations. This instruction
may need to be modified to reflect the practices of a particular trial court when
removing jurors’ cell phones. The portion of this instruction dealing with
communication with others and outside research may need to be modified to
include other specific means of communication or research as technology
develops.
3. Florida Rule of Judicial Administration 2.430(k) provides that at the
conclusion of the trial, the court shall collect and immediately destroy all juror
notes.
4. Quotient verdict. The committee recommends that no instruction
generally be given to admonish the jury against returning a “quotient verdict.”
5. When it is impracticable to take all of the evidence into the jury room,
this instruction should be modified accordingly.
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MODEL INSTRUCTION NO. 1
Automobile collision; comparative negligence; single claimant and defendant;
no counterclaim; no-fault issue; witnesses testifying in foreign language;
instructions for beginning and end of case; use of special verdict in burden of
proof and damage instructions
Facts of the hypothetical case:
John Doe was injured when the automobile he was driving collided with one
driven by Rachel Rowe. After obtaining medical attention, including a course of
treatment by Dr. Dubious, John Doe sued Rachel Rowe. Rachel Rowe pleaded
comparative negligence. Further, her medical expert opined that Dr. Dubious’s
treatment was not reasonable or necessary, and may actually have harmed John
Doe. Questions of negligence, comparative negligence, causation, permanency of
John Doe’s injuries and damages are to be submitted to the jury. Traffic Accident
Reconstruction experts testified in the case. There is no Fabre issue. Several
witnesses will testify in Spanish.
The court’s instruction:
These instructions illustrate: (1) instructions to be given at the beginning of
the case, (a) before Voir Dire, and (b) after Voir Dire, including evidentiary
instructions as they may occur during the course of the trial, (2) instructions to be
given before hearing evidence (23) instructions to be given before final argument
and the closing instructions to be given after final argument. Instruction number
(23), to be given before final argument, also illustrates how the court could utilize
the Special Verdict questions in the burden of proof portion of the instruction.
Instruction (4) is to be given following closing arguments.
(1) Instruction for the beginning of the case:
Before Voir Dire
[201.1] Welcome. [I] [The clerk] will now administer your oath.
[101.1] Do you solemnly swear or affirm that you will answer truthfully
all questions asked of you as prospective jurors [so help you God]?
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[continuation of 201.1] Now that you have been sworn, I’d like to give
you an idea about what we are here to do.
This is a civil trial. A civil trial is different from a criminal case, where
a defendant is charged by the state prosecutor with committing a crime. The
subject of a civil trial is a disagreement between people or companies [or
others, as appropriate], where the claims of one or more of these parties have
been brought to court to be resolved. “It is called a trial of a lawsuit.”
This is a case about an automobile collision. John Doe alleges that he
was permanently injured when the automobile he was driving collided with
one driven by Rachel Rowe. John Doe has sued Rachel Rowe and alleges that
she was negligent and that her negligence was the cause of the accident.
Rachel Rowe denies that she was negligent and alleges that John Doe was
comparatively negligent.
The incident involved in this case occurred on (date) at (location). (Add
any other information relevant to voir dire).
The principal witnesses who will testify in this case are (list the
witnesses).
Judge/Court: I am the Judge. You may hear people occasionally refer to
me as “The Court.” That is the formal name for my role. My job is to
maintain order and decide how to apply the rules of the law to the trial. I will
also explain various rules to you that you will need to know in order to do
your job as the jury. It is my job to remain neutral on the issues of this
lawsuit.
Parties: A party who files a lawsuit is called the Plaintiff. A party that is
sued is called the Defendant.
Attorneys: The attorneys have the job of representing their clients. That
means they speak for their client here at the trial. They have taken oaths as
attorneys to do their best and to follow the rules for their profession.
Plaintiff’s Counsel: The attorney on this side of the courtroom, (introduce
by name), represents (client name) and is the person who filed the lawsuit here
at the courthouse. [His] [Her] job is to present [his] [her] client’s side of things
to you. [He] [She] and [his] [her] client will be referred to most of the time as
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“the plaintiff.” (Attorney name), will you please introduce who is sitting at the
table with you?
[Plaintiff without Counsel: (Introduce claimant by name), on this side of the
courtroom, is the person who filed the lawsuit at the courthouse. (Claimant) is
not represented by an attorney and will present [his] [her] side of things to
you [himself] [herself].]
Defendant’s Counsel: The attorney on this side of the courtroom,
(introduce by name), represents (client name), the one who has been sued. [His]
[Her] job is to present [his] [her] client’s side of things to you. [He] [She] and
[his] [her] client will usually be referred to here as “the defendant.” (Attorney
name), will you please introduce who is sitting at the table with you?
[Defendant’s Counsel: The attorney on this side of the courtroom,
(introduce by name), represents (client name), the one who has been sued. [His]
[Her] job is to present [his] [her] client’s side of things to you. [He] [She] and
[his] [her] client will usually be referred to here as “the defendant.” [His]
[Her] client (defendant uninsured or underinsured motorist carrier) is (claimant’s
name) motor vehicle insurance company and provided [him] [her] [uninsured]
[underinsured] motorist coverage, which may be available to pay some or all
of the damages that may be awarded.]*
*Use the bracketed paragraph above when the case involves an uninsured
or underinsured motorist carrier.
[Defendant without Counsel: (Introduce defendant by name), on this side of
the courtroom, is the one who has been sued. (Defendant) is not represented by
an attorney and will present [his] [her] side of things to you [himself]
[herself].]
Court Clerk: This person sitting in front of me, (name), is the court clerk.
[He] [She] is here to assist me with some of the mechanics of the trial process,
including the numbering and collection of the exhibits that are introduced in
the course of the trial.
Court Reporter: The person sitting at the stenographic machine, (name),
is the court reporter. [His] [Her] job is to keep an accurate legal record of
everything we say and do during this trial.
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Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to
maintain order and security in the courtroom. The bailiff is also my
representative to the jury. Anything you need or any problems that come up
for you during the course of the trial should be brought to [him] [her].
However, the bailiff cannot answer any of your questions about the case. Only
I can do that.
Jury: Last, but not least, is the jury, which we will begin to select in a
few moments from among all of you. The jury’s job will be to decide what the
facts are and what the facts mean. Jurors should be as neutral as possible at
this point and have no fixed opinion about the lawsuit.
In order to have a fair and lawful trial, there are rules that all jurors
must follow. A basic rule is that jurors must decide the case only on the
evidence presented in the courtroom. You must not communicate with
anyone, including friends and family members, about this case, the people and
places involved, or your jury service. You must not disclose your thoughts
about this case or ask for advice on how to decide this case.
I want to stress that this rule means you must not use electronic devices
or computers to communicate about this case, including tweeting, texting,
blogging, e-mailing, posting information on a website or chat room, or any
other means at all. Do not send or accept any messages to or from anyone
about this case or your jury service.
You must not do any research or look up words, names, [maps], or
anything else that may have anything to do with this case. This includes
reading newspapers, watching television or using a computer, cell phone, the
Internet, any electronic device, or any other means at all, to get information
related to this case or the people and places involved in this case. This applies
whether you are in the courthouse, at home, or anywhere else.
Many of you may have cell phones, tablets, laptops, or other electronic
devices with you here in the courtroom.**
**The trial judge should select one of the following two alternative
instructions explaining the rules governing jurors’ use of electronic devices,
as explained in Note on Use 1.
Alternative A: [All cell phones, computers, tablets, or other types of
electronic devices must be turned off while you are in the courtroom. Turned
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off means that the phone or other electronic device is actually off and not in a
silent or vibrating mode. You may use these devices during recesses, but even
then you may not use your cell phone or electronic device to find out any
information about the case or communicate with anyone about the case or the
people involved in the case. Do not take photographs, video recordings, or
audio recordings of the proceedings or of your fellow jurors. After each
recess, please double check to make sure your cell phone or electronic device
is turned off. At the end of the case, while you are deliberating, you must not
communicate with anyone outside the jury room. You cannot have in the jury
room any cell phones, computers, or other electronic devices. If someone
needs to contact you in an emergency, the court can receive messages and
deliver them to you without delay. A contact phone number will be provided
to you.]
Alternative B: [You cannot have any cell phones, tablets, laptops, or
other electronic devices in the courtroom. You may use these devices during
recesses, but even then you may not use your cell phone or electronic device to
find out any information about the case or communicate with anyone about
the case or the people involved in the case. Do not take photographs, video
recordings, or audio recordings of the proceedings or your fellow jurors. At
the end of the case, while you are deliberating, you must not communicate
with anyone outside the jury room. If someone needs to contact you in an
emergency, the court can receive messages and deliver them to you without
delay. A contact phone number will be provided to you.]
What are the reasons for these rules? These rules are imposed because
jurors must decide the case without distraction and only on the evidence
presented in the courtroom. If you investigate, research, or make inquiries on
your own outside of the courtroom, the trial judge has no way to make sure
that the information you obtain is proper for the case. The parties likewise
have no opportunity to dispute or challenge the accuracy of what you find.
That is contrary to our judicial system, which assures every party the right to
ask questions about and challenge the evidence being considered against it
and to present argument with respect to that evidence. Any independent
investigation by a juror unfairly and improperly prevents the parties from
having that opportunity our judicial system promises.
Any juror who violates these restrictions jeopardizes the fairness of
these proceedings, and a mistrial could result that would require the entire
trial process to start over. A mistrial is a tremendous expense and
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inconvenience to the parties, the court, and the taxpayers. If you violate these
rules, you may be held in contempt of court, and face sanctions, such as
serving time in jail, paying a fine, or both.
All of your communications with courtroom personnel, or me, will be
part of the record of these proceedings. That means those communications
shall either be made in open court with the court reporter present or, if they
are in writing, the writing will be filed with the court clerk. I have instructed
the courtroom personnel that any communications you have with them
outside of my presence must be reported to me, and I will tell the parties [and
their attorneys] about any communication from you that I believe may be of
interest to the parties [and their attorneys].
However, you may communicate directly with courtroom personnel
about matters concerning your comfort and safety, such as [juror parking]
[location of break areas] [how and when to assemble for duty] [dress] [what
personal items can be brought into the courthouse or jury room] [list any
other types of routine ex parte communications permitted].
If you become aware of any violation of these instructions or any other
instruction I give in this case, you must tell me by giving a note to the bailiff.
[201.3] The last thing I want to do, before we begin to select the jury, is
to explain to you how the selection process works.
This is the part of the case where the parties and their lawyers have the
opportunity to get to know a little bit about you, in order to help them come to
their own conclusions about your ability to be fair and impartial, so they can
decide who they think should be the jurors in this case.
How we go about that is as follows: First, I’ll ask some general
questions of you. Then, each of the lawyers will have more specific questions
that they will ask of you. After they have asked all of their questions, I will
meet with them and they will tell me their choices for jurors. Each side can
ask that I exclude a person from serving on a jury if they can give me a reason
to believe that he or she might be unable to be fair and impartial. That is
what is called a challenge for cause. The lawyers also have a certain number
of what are called peremptory challenges, by which they may exclude a person
from the jury without giving a reason. By this process of elimination, the
remaining persons are selected as the jury. It may take more than one
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conference among the parties, their attorneys, and me before the final
selections are made.
The questions that you will be asked during this process are not
intended to embarrass you or unnecessarily pry into your personal affairs, but
it is important that the parties and their attorneys know enough about you to
make this important decision. If a question is asked that you would prefer not
to answer in front of the whole courtroom, just let me know and you can come
up here and give your answer just in front of the attorneys and me. If you
have a question of either the attorneys or me, don’t hesitate to let me know.
There are no right or wrong answers to the questions that will be asked
of you. The only thing that I ask is that you answer the questions as frankly
and as honestly and as completely as you can. You [will take] [have taken] an
oath to answer all questions truthfully and completely and you must do so.
Remaining silent when you have information you should disclose is a violation
of that oath as well. If a juror violates this oath it not only may result in
having to try the case all over again but also can result in civil and criminal
penalties against a juror personally. So, again, it is very important that you
be as honest and complete with your answers as you possibly can. If you don’t
understand the question, please raise your hand and ask for an explanation or
clarification.
In sum, this is a process to assist the parties and their attorneys to select
a fair and impartial jury. All of the questions they ask you are for this
purpose. If, for any reason, you do not think you can be a fair and impartial
juror, you must tell us.
2. Voir Dire:
Instructions After Voir Dire
[101.2] Members of the jury, do you solemnly swear or affirm that you
will well and truly try this case between John Doe and Rachel Rowe, and a
true verdict render according to the law and evidence?
[202.1] You have now taken an oath to serve as jurors in this trial.
Before we begin, I am going to tell you about the rules of law that apply to this
case. It is my intention to give you [all] [most] of the rules of law but it might
be that I will not know for sure all of the law that might apply in this case
until all of the evidence is presented. However, I can anticipate most of the law
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and give it to you at the beginning of the trial so that you can better
understand what to be looking for as the evidence is presented. If I later
decide that different law applies to the case, I will call that to your attention.
In any event, at the end of the evidence I will give you the final instructions
that you must use to decide this case and it is those instructions on which you
must base your verdict. At that time, you will have a complete written set of
the instructions so you do not have to memorize what I am about to tell you.
[401.2] The claims and defenses in this case are as follows. John Doe
claims that Rachel Rowe was negligent in the operation of the vehicle she was
driving which caused him harm.
Rachel Rowe denies that claim and also claims that John Doe was
himself negligent in the operation of his vehicle, which caused his harm.
The parties must prove their claims by the greater weight of the
evidence. I will now define some of the terms you will use in deciding this case.
[401.3] “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.
[401.4] Negligence is the failure to use reasonable care, which is the care
that a reasonably careful person would use under like circumstances.
Negligence is doing something that a reasonably careful person would not do
under like circumstances or failing to do something that a reasonably careful
person would do under like circumstances.
If there is an issue about the applicability of a statute
this instruction would be omitted at this time.
[401.9] (Read or paraphrase the applicable statute or refer to the ordinance
or regulation admitted in evidence.) Violation of this statute is evidence of
negligence. It is not, however, conclusive evidence of negligence. If you find
that Rachel Rowe violated this statute, you may consider that fact, together
with the other facts and circumstances, in deciding whether she was negligent.
[401.12(a)] Negligence is a legal cause of loss, injury, or damage if it
directly and in natural and continuous sequence produces or contributes
substantially to producing such loss, injury, or damage, so that it can
reasonably be said that, but for the negligence, the loss, injury, or damage
would not have occurred.
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[401.12(b)] In order to be regarded as a legal cause of loss, injury, or
damage negligence need not be the only cause. Negligence may be a legal
cause of loss, injury, or damage even though it operates in combination with
some other cause if the negligence contributes substantially to producing such
loss, injury, or damage.
[401.18] The issues you must decide on John Doe’s claim against Rachel
Rowe are whether Rachel Rowe was negligent in the operation of her vehicle,
and, if so, whether that negligence was a legal cause of the loss, injury, or
damage to John Doe.
[401.21] If the greater weight of the evidence does not support John
Doe’s claim, your verdict should be for Rachel Rowe.
[401.22] If, however, the greater weight of the evidence supports John
Doe’s claim, then you shall consider the defense raised by Rachel Rowe.
[401.22(a)] On that defense, the issue for you to decide is whether John
Doe was himself negligent in the operation of his vehicle and, if so, whether
that negligence was a contributing legal cause of injury or damage to John
Doe.
[401.23] If the greater weight of the evidence does not support Rachel
Rowe’s defense and the greater weight of the evidence supports John Doe’s
claim, then your verdict should be for John Doe in the total amount of his
damages.
If, however, the greater weight of the evidence shows that both John
Doe and Rachel Rowe were negligent and that the negligence of each
contributed as a legal cause of loss, injury, or damage sustained by John Doe,
you should decide and write on the verdict form, which I will give you at the
end of the case, what percentage of the total negligence of both parties to this
action was caused by each of themyou apportion to each of them.
[501.3] If your verdict is for Rachel Rowe, you will not consider the
matter of damages. But, if the greater weight of the evidence supports John
Doe’s claim, you should determine and write on the verdict form, in dollars,
the total amount of money that the greater weight of the evidence shows will
fairly and adequately compensate John Doe for the following elements of
damage to the extent that they have not been paid and are not payable by
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personal injury protection benefits, including damage that John Doe is
reasonably certain to incur in the future:
The reasonable expense of hospitalization and medical care and
treatment necessarily or reasonably obtained by John Doe in the past, or to be
so obtained in the future.
Any earnings lost in the past, and any loss of ability to earn money in
the future.
You must next decide whether John Doe’s injury, resulting from the
incident in this case, is permanent. An injury is permanent if it, in whole or in
part, consists of an injury that the evidence shows is permanent to a
reasonable degree of medical probability.
If the greater weight of the evidence does not establish that John Doe’s
injury is permanent, then your verdict is complete. If, however, the greater
weight of the evidence shows that John Doe’s injury is permanent, you should
also award damages for this additional element of damage:
Any bodily injury sustained by John Doe and any resulting pain and
suffering, disability or physical impairment, disfigurement, mental anguish,
inconvenience or loss of capacity for the enjoyment of life experienced in the
past, or to be experienced in the future. There is no exact standard for
measuring such damage. The amount should be fair and just, in the light of
the evidence.
[501.54] In determining the total amount of damages, you should not
make any reduction because of the negligence, if any, of John Doe. The court
will enter a judgment based on your verdict and, if you find that John Doe
was negligent in any degree, the court, in entering judgment, will reduce the
total amount of damages by the percentage of negligence, which you find was
caused by John Doe.
[501.5c] If you find that Rachel Roe caused loss, injury, or damage to
John Doe, then Rachel Roe is also responsible for any additional loss, injury,
or damage caused by medical care or treatment reasonably obtained by John
Doe.
[501.6] If the greater weight of the evidence shows that John Doe has
been permanently injured, you may consider his life expectancy. Mortality
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tables may be received in evidence and, if they are, you may consider them in
determining how long John Doe may be expected to live. Mortality tables are
not binding on you, but may be considered together with other evidence in the
case bearing on John Doe’s health, age and physical condition, before and
after the injury, in determining the probable length of his life.
[501.7] Any amount of damages, which you allow for future medical
expenses or loss of ability to earn money in the future, should be reduced to its
present money value, and only the present money value of these future
economic damages should be included in your verdict. The present money
value of future economic damages is the sum of money needed now which,
together with what that sum will earn in the future, will compensate John Doe
for these losses as they are actually experienced in future years.
[601.1] In deciding this case, it is your duty as jurors to decide the
issues, and only those issues, that I submit for your determination at the end of
the case and to answer certain questions I will ask you to answer on a special
form, called a special verdict. You must come to an agreement about what
your answers will be. Your agreed-upon answers to my questions are called
your jury verdict.
In reaching your verdict, you must think about and weigh the testimony
and any documents, photographs, or other material that has been received in
evidence. You may also consider any facts that were admitted or agreed to by
the lawyers. Your job is to determine what the facts are. You may use reason
and common sense to reach conclusions. You may draw reasonable inferences
from the evidence. But you should not guess about things that were not
covered here. And, you must always apply the law as I finally explain it to you
at the end of the case.
[601.2(a)] Let me speak briefly about witnesses. In evaluating the
believability of any witness and the weight you will give the testimony of any
witness, you may properly consider the demeanor of the witness while
testifying; the frankness or lack of frankness of the witness; the intelligence of
the witness; any interest the witness may have in the outcome of the case; the
means and opportunity the witness had to know the facts about which the
witness testified; the ability of the witness to remember the matters about
which the witness testified; and the reasonableness of the testimony of the
witness, considered in the light of all the evidence in the case and in the light
of your own experience and common sense.
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[601.2(b)] Some of the testimony you hear may be in the form of opinions
about certain technical subjects.
You may accept such opinion testimony, reject it, or give it the weight
you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion
expressed, and all the other evidence in the case.
[202.2] Now that you have heard the law, I want to let you know what
you can expect as the trial proceeds.
Opening Statements: In a few moments, the attorneys will each have a
chance to make what are called opening statements. In an opening statement,
an attorney is allowed to give you [his] [her] views about what the evidence
will be in the trial and what you are likely to see and hear in the testimony.
Evidentiary Phase: After the attorneys’ opening statements the plaintiff
will bring his witnesses and evidence to you, followed by the defendant.
Evidence: Evidence is the information that the law allows you to see or
hear in deciding this case. Evidence includes the testimony of the witnesses,
documents, and anything else that I instruct you to consider.
Witnesses: A witness is a person who takes an oath to tell the truth and
then answers attorneys’ questions for the jury. The answering of attorneys’
questions by witnesses is called “giving testimony.” Testimony means
statements that are made when someone has sworn an oath to tell the truth.
The plaintiff’s lawyer will normally ask a witness the questions first.
That is called direct examination. Then the defense lawyer may ask the same
witness additional questions about whatever the witness has testified to. That
is called cross-examination. Certain documents or other evidence may also be
shown to you during direct or cross-examination. After the plaintiff’s
witnesses have testified, the defendant will have the opportunity to put
witnesses on the stand and go through the same process. Then the plaintiff’s
lawyer gets to do cross-examination. The process is designed to be fair to both
sides.
It is important that you remember that testimony comes from witnesses.
The attorneys do not give testimony and they are not themselves witnesses.
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Objections: Sometimes the attorneys will disagree about the rules for
trial procedure when a question is asked of a witness. When that happens, one
of the lawyers may make what is called an “objection.” The rules for a trial
can be complicated, and there are many reasons for the attorneys to object.
You should simply wait for me to decide how to proceed. If I say that an
objection is “sustained,” that means you should disregard the question and
the witness may not answer the question. If I say that the objection is
“overruled,” that means the witness may answer the question.
When there is an objection and I make a decision, you must not assume
from that decision that I have any particular opinion other than that the rules
for conducting a trial are being correctly followed. If I say a question may not
be asked or answered, you must not try to guess what the answer would have
been. That is against the rules, too.
Side Bar Conferences: Sometimes I will need to speak to the attorneys
about legal elements of the case that are not appropriate for the jury to hear.
The attorneys and I will try to have as few of these conferences as possible
while you are giving us your valuable time in the courtroom. But, if we do
have to have such a conference during testimony, we will try to hold the
conference at the side of my desk so that we do not have to take a break and
ask you to leave the courtroom.
Recesses: Breaks in an ongoing trial are usually called “recesses.”
During a recess you still have your duties as a juror and must follow the rules,
even while having coffee, at lunch, or at home.
Instructions Before Closing Arguments: After all the evidence has been
presented to you, I will again instruct you on the law that you must follow. At
that time you will have a written set of the instructions for your use.
Closing Arguments: The attorneys will then have the opportunity to
make their final presentations to you, which are called closing arguments.
Final Instructions: After you have heard the closing arguments, I will
instruct you further in the law as well as explain to you the procedures you
must follow to decide the case.
Deliberations: After you hear the final jury instructions, you will go to
the jury room and discuss and decide the questions I have put on your verdict
form. [You will have a copy of the jury instructions to use during your
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discussions.] The discussions you have and the decisions you make are usually
called “jury deliberations.” Your deliberations are absolutely private and
neither I nor anyone else will be with you in the jury room.
Verdict: When you have finished answering the questions, you will give
the verdict form to the bailiff, and we will all return to the courtroom where
your verdict will be read. When that is completed, you will be released from
your assignment as a juror.
What are the rules?
Finally, before we begin the trial, I want to give you just a brief
explanation of rules you must follow as the case proceeds.
Keeping an Open Mind. You must pay close attention to the testimony
and other evidence as it comes into the trial. However, you must avoid
forming any final opinion or telling anyone else your views on the case until
you begin your deliberations. This rule requires you to keep an open mind
until you have heard all of the evidence and is designed to prevent you from
influencing how your fellow jurors think until they have heard all of the
evidence and had an opportunity to form their own opinions. The time and
place for coming to your final opinions and speaking about them with your
fellow jurors is during deliberations in the jury room, after all of the evidence
has been presented, closing arguments have been made, and I have instructed
you on the law. It is important that you hear all of the facts and that you hear
the law and how to apply it before you start deciding anything.
Consider Only the Evidence. It is the things you hear and see in this
courtroom that matter in this trial. The law tells us that a juror can consider
only the testimony and other evidence that all the other jurors have also heard
and seen in the presence of the judge and the lawyers. Doing anything else is
wrong and is against the law. That means that you cannot do any work or
investigation of your own about the case. You cannot obtain on your own any
information about the case or about anyone involved in the case, from any
source whatsoever, including the Internet, and you cannot visit places
mentioned in the trial.
Do not provide any information about this case to anyone, including
friends or family members. Do not let anyone, including the closest family
members, make comments to you or ask questions about the trial. Similarly, it
is important that you avoid reading any newspaper accounts or watching or
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listening to television or radio comments that have anything to do with this
case or its subject.
No Mid-Trial Discussions. When we are in a recess, do not discuss
anything about the trial or the case with each other or with anyone else. If
attorneys approach you, don’t speak with them. The law says they are to
avoid contact with you. If an attorney will not look at you or speak to you, do
not be offended or form a conclusion about that behavior. The attorney is not
supposed to interact with jurors outside of the courtroom and is only
following the rules. The attorney is not being impolite. If an attorney or
anyone else does try to speak with you or says something about the case in
your presence, please inform the bailiff immediately.
Only the Jury Decides. Only you get to deliberate and answer the verdict
questions at the end of the trial. I will not intrude into your deliberations at
all. I am required to be neutral. You should not assume that I prefer one
decision over another. You should not try to guess what my opinion is about
any part of the case. It would be wrong for you to conclude that anything I say
or do means that I am for one side or another in the trial. Discussing and
deciding the facts is your job alone.
[202.3] If you would like to take notes during the trial, you may do so.
On the other hand, of course, you are not required to take notes if you do not
want to. That will be left up to you individually.
You will be provided with a note pad and a pen for use if you wish to
take notes. Any notes that you take will be for your personal use. However,
you should not take them with you from the courtroom. During recesses, the
bailiff will take possession of your notes and will return them to you when we
reconvene. After you have completed your deliberations, the bailiff will
deliver your notes to me. They will be destroyedcollect your notes, which will
be immediately destroyed. No one will ever read your notes.
If you take notes, do not get so involved in note-taking that you become
distracted from the proceedings. Your notes should be used only as aids to
your memory.
Whether or not you take notes, you should rely on your memory of the
evidence and you should not be unduly influenced by the notes of other jurors.
Notes are not entitled to any greater weight than each juror’s memory of the
evidence.
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[202.4] During the trial, you may have a question you think should be
asked of a witness. If so, there is a procedure by which you may request that I
ask the witness a question. After all the attorneys have completed their
questioning of the witness, you should raise your hand if you have a question.
I will then give you sufficient time to write the question on a piece of paper,
fold it, and give it to the bailiff, who will pass it to me. You must not show
your question to anyone or discuss it with anyone.
I will then review the question with the attorneys. Under our law, only
certain evidence may be considered by a jury in determining a verdict. You
are bound by the same rules of evidence that control the attorneys’ questions.
If I decide that the question may not be asked under our rules of evidence, I
will tell you. Otherwise, I will direct the question to the witness. The attorneys
may then ask follow-up questions if they wish. If there are additional
questions from jurors, we will follow the same procedure again.
By providing this procedure, I do not mean to suggest that you must or
should submit written questions for witnesses. In most cases, the lawyers will
have asked the necessary questions.
[202.5] During the trial, some witnesses may testify in Spanish which will
be interpreted in English.
The evidence you are to consider is only that provided through the
official court interpreters. Although some of you may know Spanish, it is
important that all jurors consider the same evidence. Therefore, you must
accept the English interpretation. You must disregard any different meaning.
If, however, during the testimony there is a question as to the accuracy
of the English interpretation, you should bring this matter to my attention
immediately by raising your hand. You should not ask your question or make
any comment about the interpretation in the presence of the other jurors, or
otherwise share your question or concern with any of them. I will take steps to
see if your question can be answered and any discrepancy resolved. If,
however, after such efforts a discrepancy remains, I emphasize that you must
rely only upon the official English interpretation as provided by the court
interpreter and disregard any other contrary interpretation.
The attorneys will now present their opening statements after which you
will begin hearing the evidence.
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(2) Evidence instructions during trial
Evidence instructions are to be given during the trial process when/if the
particular evidentiary issue occurs and the instruction becomes applicable. Here
is a listing of the available standard jury instructions on evidence:
301.1 Deposition Testimony, Interrogatories, Stipulated Testimony,
Stipulations, and Admissions
301.2 Instruction when First Item of Documentary, Photographic, or
Physical Evidence Is Admitted
301.3 Instruction when Evidence is First Published to Jurors
301.4 Instruction Regarding Visual or Demonstrative Aids
301.5 Evidence Admitted for a Limited Purpose
301.6 Jury to Be Guided by Official English Translation/Interpretation
301.7 Jury to Be Guided by Official English Transcript of Recording in
Foreign Language (Accuracy Not in Dispute)
301.8 Jury to Be Guided by Official English Translation/Interpretation –
Transcript of Recording in Foreign Language (Accuracy in Dispute)
301.9 Disregard Stricken Matter
301.10 Instruction Before Recess
301.11 Failure to Maintain Evidence or Keep a Record
(23) Instruction before final argument:
[401.1] Members of the jury, you have now heard and received all of the
evidence in this case. I am now going to tell you about the rules of law that you
must use in reaching your verdict. You will recall at the beginning of the case
I told you that if, at the end of the case I decided that different law applies, I
would tell you so. These instructions are, however, the same as [if different
explain how] what I gave you at the beginning and it is these rules of law that
you must now follow. When I finish telling you about the rules of law, the
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attorneys will present their final arguments and you will then retire to decide
your verdict.
[401.2] The claims and defenses in this case are as follows. John Doe
claims that Rachel Rowe was negligent in the operation of the vehicle she was
driving which caused him harm.
Rachel Rowe denies that claim and also claims that John Doe was
himself negligent in the operation of his vehicle, which caused his harm.
The parties must prove their claims by the greater weight of the
evidence. I will now define some of the terms you will use in deciding this case.
[401.3] “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.
[401.4] Negligence is the failure to use reasonable care, which is the care
that a reasonably careful person would use under like circumstances.
Negligence is doing something that a reasonably careful person would not do
under like circumstances or failing to do something that a reasonably careful
person would do under like circumstances.
[401.9] (Read or paraphrase the applicable statute or refer to the ordinance
or regulation admitted in evidence.) Violation of this statute is evidence of
negligence. It is not, however, conclusive evidence of negligence. If you find
that Rachel Rowe violated this statute, you may consider that fact, together
with the other facts and circumstances, in deciding whether she was negligent.
[401.12(a)] Negligence is a legal cause of loss, injury, or damage if it
directly and in natural and continuous sequence produces or contributes
substantially to producing such loss, injury, or damage, so that it can
reasonably be said that, but for the negligence, the loss, injury, or damage
would not have occurred.
[401.12(b)] In order to be regarded as a legal cause of loss, injury, or
damage negligence need not be the only cause. Negligence may be a legal
cause of loss, injury, or damage even though it operates in combination with
some other cause if the negligence contributes substantially to producing such
loss, injury, or damage.
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[401.18] The issues you must decide on John Doe’s claim against Rachel
Rowe are whether Rachel Rowe was negligent in the operation of her vehicle,
and, if so, whether that negligence was a legal cause of the loss, injury, or
damage to John Doe.
You will be given a Special Verdict to use in this case. The first question in
the Special Verdict is:
1. Was there negligence on the part of Defendant, RACHEL ROWE,
which was a legal cause of damage to Plaintiff, JOHN DOE?
YES NO
[401.21, 22] If the greater weight of the evidence supports John Doe’s
claim, you will answer that question “YES.” If, however, your answer to
question 1 is “NO,” your verdict is for the Defendant, and you should not
proceed further, except to date and sign the Special Verdict and return it to the
courtroom.
If you answered the first question YES, then you shall consider the
defense raised by Rachel Rowe.
[401.22(a)] On that defense, the issue for you to decide is whether John
Doe was himself negligent in the operation of his vehicle and, if so, whether
that negligence was a contributing legal cause of injury or damage to John
Doe. In connection with that defense, the second question in the Special Verdict
is:
2. Was there negligence on the part of Plaintiff, JOHN DOE, which
was a legal cause of his damage?
YES NO
[401.23] If the greater weight of the evidence supports Rachel Rowe’s
defense, you will answer that question “Yes.” If, however, your answer to that
question is “NO” and the greater weight of the evidence supports John Doe’s
claim, then your verdict should be for John Doe in the total amount of his
damages and you will skip the third question in the Special Verdict and proceed
directly to the questions concerning damages.
If, however, the greater weight of the evidence shows that both John
Doe and Rachel Rowe were negligent and that the negligence of each
contributed as a legal cause of loss, injury, or damage sustained by John Doe,
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you should decide and write on the verdict form what percentage of the total
negligence of both parties to this action was caused by each of themyou
apportion to each of them. In that connection, the third question in the Special
Verdict is:
3. State the percentage of negligence which was a legal cause of
damage to Plaintiff, JOHN DOE, that you charge to:
RACHEL ROWE %
JOHN DOE %
[501.3] If your verdict is for Rachel Rowe, you will not consider the
matter of damages. But, if the greater weight of the evidence supports John
Doe’s claim and you answered the first question “YES,” you should determine
and write on the verdict form, in dollars, the total amount of money that the
greater weight of the evidence shows will fairly and adequately compensate
John Doe for the following elements of damage to the extent that they have
not been paid and are not payable by personal injury protection benefits,
including damage that John Doe is reasonably certain to incur in the future:
The reasonable expense of hospitalization and medical care and
treatment necessarily or reasonably obtained by John Doe in the past, or to be
so obtained in the future:
Any earnings lost in the past, and any loss of ability to earn money in
the future.
These appear as questions 4 and 5 in the Special Verdict.
You must next decide whether John Doe’s injury, resulting from the
incident in this case, is permanent. An injury is permanent if it, in whole or in
part, consists of an injury that the evidence shows is permanent to a
reasonable degree of medical probability.
If the greater weight of the evidence does not establish that John Doe’s
injury is permanent, then your verdict is complete. If, however, the greater
weight of the evidence shows that John Doe’s injury is permanent, you should
also award damages for this additional element of damage:
Any bodily injury sustained by John Doe and any resulting pain and
suffering, disability or physical impairment, disfigurement, mental anguish,
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inconvenience or loss of capacity for the enjoyment of life experienced in the
past, or to be experienced in the future. There is no exact standard for
measuring such damage. The amount should be fair and just, in the light of
the evidence.
This appears as question 6 in the Special Verdict.
[501.4] In determining the total amount of damages, you should not
make any reduction because of the negligence, if any, of John Doe. The court
will enter a judgment based on your verdict and, if you find that John Doe
was negligent in any degree, the court, in entering judgment, will reduce the
total amount of damages by the percentage of negligence which you find was
caused byyou apportion to John Doe.
[501.6] If the greater weight of the evidence shows that John Doe has
been permanently injured, you may consider his life expectancy. The
mortality tables received in evidence may be considered in determining how
long John Doe may be expected to live. Mortality tables are not binding on
you, but may be considered together with other evidence in the case bearing
on John Doe’s health, age and physical condition, before and after the injury,
in determining the probable length of his life.
[501.7] Any amount of damages which you allow for future medical
expenses or loss of ability to earn money in the future should be reduced to its
present money value, and only the present money value of these future
economic damages should be included in your verdict. The present money
value of future economic damages is the sum of money needed now which,
together with what that sum will earn in the future, will compensate John Doe
for these losses as they are actually experienced in future years.
[601.1] In deciding this case, it is your duty as jurors to decide the
issues, and only those issues, that I submit for your determination and to
answer the questions I have asked you to answer on the special verdict. You
must come to an agreement about what your answers will be. Your agreed-
upon answers to my questions are called your jury verdict.
In reaching your verdict, you must think about and weigh the testimony
and any documents, photographs, or other material that has been received in
evidence. You may also consider any facts that were admitted or agreed to by
the lawyers. Your job is to determine what the facts are. You may use reason
and common sense to reach conclusions. You may draw reasonable inferences
- 38 -
from the evidence. But you should not guess about things that were not
covered here. And, you must always apply the law as I have explained it to
you.
[601.2(a)] Let me speak briefly about witnesses. In evaluating the
believability of any witness and the weight you will give the testimony of any
witness, you may properly consider the demeanor of the witness while
testifying; the frankness or lack of frankness of the witness; the intelligence of
the witness; any interest the witness may have in the outcome of the case; the
means and opportunity the witness had to know the facts about which the
witness testified; the ability of the witness to remember the matters about
which the witness testified; and the reasonableness of the testimony of the
witness, considered in the light of all the evidence in the case and in the light
of your own experience and common sense.
[601.2(b)] Some of the testimony before you was in the form of opinions
about certain technical subjects.
You may accept such opinion testimony, reject it, or give it the weight
you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion
expressed, and all the other evidence in the case.
[601.3] Some witnesses testified in Spanish during this trial, which had
to be interpreted into English. The evidence you are to consider is only that
provided through the official court interpreters. Although some of you may
know Spanish, it is important that all jurors consider the same evidence.
Therefore, you must base your decision on the evidence presented in the
English interpretation. You must disregard any different meaning.
[601.5] That is the law you must follow in deciding this case. The
attorneys for the parties will now present their final arguments. When they
are through, I will have a few final instructions about your deliberations.
(34) Instruction following closing arguments:
[700] Members of the jury, you have now heard all the evidence, my
instructions on the law that you must apply in reaching your verdict, and the
closing arguments of the attorneys. You will shortly retire to the jury room to
decide this case. Before you do so, I have a few last instructions for you.
- 39 -
You will have in the jury room all of the evidence that was received
during the trial. In reaching your decision, do not do any research on your
own or as a group. Do not use dictionaries, the Internet, or other reference
materials. Do not investigate the case or conduct any experiments. Do not
contact anyone to assist you, such as a family accountant, doctor, or lawyer.
Do not visit or view the scene of any event involved in this case. If you happen
to pass by the scene, do not stop or investigate. All jurors must see or hear the
same evidence at the same time. Do not read, listen to, or watch any news
accounts of this trial.
Any notes you have taken during the trial may be taken to the jury
room for use during your discussions. Your notes are simply an aid to your
own memory, and neither your notes nor those of any other juror are binding
or conclusive. Your notes are not a substitute for your own memory or that of
other jurors. Instead, your verdict must result from the collective memory
and judgment of all jurors based on the evidence and testimony presented
during the trial.
At the conclusion of the trial, the bailiff will collect all of your notes, and
immediately destroy themwhich will be immediately destroyed. No one will
ever read your notes.
In reaching your verdict, do not let bias, sympathy, prejudice, public
opinion or any other sentiment for or against any party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.
Reaching a verdict is exclusively your job. I cannot participate in that
decision in any way and you should not guess what I think your verdict should
be from something I may have said or done. You should not think that I
prefer one verdict over another. Therefore, in reaching your verdict, you
should not consider anything that I have said or done, except for my specific
instructions to you.
Pay careful attention to all the instructions that I gave you for that is the
law that you must follow. You will have a copy of my instructions with you
when you go to the jury room to deliberate. All the instructions are important
and you must consider all of them together. There are no other laws that
apply to this case and even if you do not agree with these laws, you must use
them in reaching your decision in this case.
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When you go to the jury room, the first thing you should do is choose a
presiding juror. The presiding juror should see to it that your discussions are
orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself, but
only after you have considered the evidence with the other members of the
jury. Feel free to change your mind if you are convinced that your position
should be different. You should all try to agree. But do not give up your
honest beliefs just because the others think differently. Keep an open mind so
that you and your fellow jurors can easily share ideas about the case.
I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these
questions. You must follow my instructions and the form carefully. You must
consider each question separately. Please answer the questions in the order
they appear. After you answer a question, the form tells you what to do next. I
will now read the form to you: (read form of verdict)
Your verdict must be unanimous, that is, your verdict must be agreed to
by each of you. When you are finished filling out the form, your presiding
juror must write the date and sign it at the bottom. Return the form to the
bailiff.
If any of you need to communicate with me for any reason, write me a
note and give it to the bailiff. In your note, do not disclose any vote or split or
the reason for the communication.
You may now retire to decide your verdict.
Special Verdict Form
VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of Defendant, RACHEL ROWE,
which was a legal cause of damage to Plaintiff, JOHN DOE?
YES NO
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If your answer to question 1 is NO, your verdict is for the Defendant, and you
should not proceed further, except to date and sign this verdict form and
return it to the courtroom. If your answer to question 1 is YES, please answer
question 2.
2. Was there negligence on the part of Plaintiff, JOHN DOE, which
was a legal cause of his damage?
YES NO
If your answer to question 2 is YES, please answer question 3. If your answer
to question 2 is NO, please skip question 3 and answer questions 4 and 5.
3. State the percentage of negligence which was a legal cause of
damage to Plaintiff, JOHN DOE, that you chargeapportion to:
RACHEL ROWE %
JOHN DOE %
Total must be 100%
In determining the amount of any damages, do not make any reduction
because of the negligence, if any, of Plaintiff, JOHN DOE. If you find Plaintiff,
JOHN DOE, negligent in any degree, the court, in entering judgment, will
reduce JOHN DOE’S total amount of damages (100%) by the percentage of
negligence that you find was caused byapportion to JOHN DOE.
Please answer questions 4 and 5.
4. What is the total amount of JOHN DOE’S
damages for medical expenses incurred in the past, and
medical expenses to be incurred in the future? $
5. What is the total amount of JOHN DOE’S
damages for lost earnings in the past and loss of
earning capacity in the future? $
If the greater weight of the evidence shows that JOHN DOE’S injuries
were in whole or in part permanent within a reasonable degree of medical
probability, please answer question 6:
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6. What is the total amount of JOHN DOE’S
damages for pain and suffering, disability, physical
impairment, disfigurement, mental anguish,
inconvenience, aggravation of a disease or physical
defect and loss of capacity for the enjoyment of life
sustained in the past and to be sustained in the future? $
TOTAL DAMAGES OF JOHN DOE
(add lines 1, 2, and, if applicable, 3) $
SO SAY WE ALL, this day of ,2
FOREPERSON
MODEL INSTRUCTION NO. 2
Automobile collision; driver’s comparative negligence including failure to
wear seat belt; aggravation of pre-existing injury; multiple events
Facts of the hypothetical case:
Jane Doe was injured when the automobile she was driving collided with
one driven by Richard Rowe. Jane Doe, who is married to John Doe, sued Richard
Rowe. Richard Rowe pleaded that Jane Doe was comparatively negligent because
of the operation of her own vehicle and because she was not wearing a seat belt at
the time of the collision. There are issues of a pre-existing injury and multiple
accidents. Questions of negligence, causation and damages are to be submitted to
the jury.
The court’s instruction:
The committee assumes that the court will give these instructions as part of
the instruction at the beginning of the case and that these instructions will be given
again before Final Argument. When given at the beginning of the case, 202.1 will
be used in lieu of 401.1 and these instructions will be followed by the applicable
- 43 -
portions of 202.2 through 202.5. See Model Instruction No. 1 for a full illustration
of an instruction at the beginning of the case.
[401.1] Members of the jury, you have now heard and received all of the
evidence in this case. I am now going to tell you about the rules of law that you
must use in reaching your verdict. You will recall at the beginning of the case
I told you that if, at the end of the case I decided that different law applies, I
would tell you so. These instructions are, however, the same as what I gave you
at the beginning and it is these rules of law that you must now follow. When I
finish telling you about the rules of law, the attorneys will present their final
arguments and you will then retire to decide your verdict.
[401.2] The claims and defenses in this case are as follows. Jane Doe
claims that Richard Rowe was negligent in the operation of the vehicle he was
driving which caused her harm.
Richard Rowe denies that claim and also claims that Jane Doe was
herself negligent in the operation of her vehicle and in her failure to use her
seat belt, both of which caused her harm.
The parties must prove their claims by the greater weight of the
evidence. I will now define some of the terms you will use in deciding this case.
[401.3] “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.
[401.4] Negligence is the failure to use reasonable care, which is the care
that a reasonably careful person would use under like circumstances.
Negligence is doing something that a reasonably careful person would not do
under like circumstances or failing to do something that a reasonably careful
person would do under like circumstances.
[401.9] F.S. 316.614, provides that “[i]t is unlawful for any person . . . [t]o
operate a motor vehicle in this state unless the person is restrained by a safety
belt.” Violation of this statute is evidence of negligence. It is not, however,
conclusive evidence of negligence. If you find that Jane Doe violated this
statute, you may consider that fact, together with the other facts and
circumstances, in deciding whether she was negligent.
[401.12(a)] Negligence is a legal cause of loss, injury, or damage if it
directly and in natural and continuous sequence produces or contributes
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substantially to producing such loss, injury, or damage, so that it can
reasonably be said that, but for the negligence, the loss, injury, or damage
would not have occurred.
[401.12(b)] In order to be regarded as a legal cause of loss, injury, or
damage negligence need not be the only cause. Negligence may be a legal
cause of loss, injury, or damage even though it operates in combination with
some other cause if the negligence contributes substantially to producing such
loss, injury, or damage.
[401.12(c)] Negligence may also be a legal cause of loss, injury, or
damage even though it operates in combination with the act of another or
some other cause occurring after the negligence occurs if such other cause was
itself reasonably foreseeable and the negligence contributes substantially to
producing such loss, injury, or damage.
[401.18] The issues you must decide on Jane Doe’s claim against
Richard Rowe are whether Richard Rowe was negligent in the operation of
his vehicle, and, if so, whether that negligence was a legal cause of the loss,
injury, or damage to Jane Doe.
[401.21] If the greater weight of the evidence does not support Jane
Doe’s claim, your verdict should be for Richard Rowe.
[401.22] If, however, the greater weight of the evidence supports Jane
Doe’s claim, then you shall consider the defense raised by Richard Rowe.
[401.22(a)] On that defense, the issue for you to decide is whether Jane
Doe was herself negligent in the operation of her vehicle and/or in failing to
wear her seat belt, if so, whether that negligence was a contributing legal
cause of injury or damage to Jane Doe.
[401.23] If the greater weight of the evidence does not support Richard
Rowe’s defense and the greater weight of the evidence supports Jane Doe’s
claim, then your verdict should be for Jane Doe in the total amount of her
damages.
If, however, the greater weight of the evidence shows that both Richard
Rowe and Jane Doe were negligent and that the negligence of each
contributed as a legal cause of loss, injury, or damage sustained by Jane Doe,
you should decide and write on the verdict form what percentage of the total
- 45 -
negligence of both parties to this action was caused byyou apportion to each of
them.
[501.1(b)] If your verdict is for Richard Rowe you will not consider the
matter of damages. But if the greater weight of the evidence supports Jane
Doe’s claim, you should determine and write on the verdict form, in dollars,
the total amount of loss, injury or damage which the greater weight of the
evidence shows will fairly and adequately compensate her for her loss, injury,
or damage, including any damages Jane Doe is reasonably certain to incur or
experience in the future. You shall consider the following elements:
[501.2(a)] Any bodily injury sustained, any resulting pain and suffering,
disability or physical impairment, disfigurement, mental anguish, incon-
venience or loss of capacity for the enjoyment of life experienced in the past,
or to be experienced in the future. There is no exact standard for measuring
such damage. The amount should be fair and just, in the light of the evidence.
[501.2(b)] The reasonable expense of hospitalization and medical care
and treatment necessarily or reasonably obtained in the past, or to be so
obtained in the future.
[501.2(c)] Any earnings lost in the past, and any loss of ability to earn
money in the future.
[501.2(d)] On the claim brought by John Doe, you should award his wife
an amount of money which the greater weight of the evidence shows will fairly
and adequately compensate John Doe for any loss by reason of his wife’s
injury, of her services, comfort, society, and attentions in the past and in the
future caused by the incident in question.
[501.2(h)] Any damage to Jane Doe’s automobile. The measure of such
damage is the reasonable cost of repair, if it was practicable to repair the
automobile, with due allowance for any difference between its value
immediately before the collision and its value after repair. You shall also take
into consideration any loss Jane Doe sustained for towing or storage charges
and by being deprived of the use of her automobile during the period
reasonably required for its repair.
[501.4] In determining the total amount of damages, you should not
make any reduction because of the negligence, if any, of Jane Doe. The court
will enter a judgment based on your verdict and, if you find that Jane Doe was
- 46 -
negligent in any degree, the court, in entering judgment, will reduce the total
amount of damages by the percentage of negligence which you find was
caused byyou apportion to Jane Doe.
[501.5(a)] If you find that the Richard Rowe caused a bodily injury, and
that the injury resulted in an aggravation of an existing disease or physical
defect, you should attempt to determine what portion of Jane Doe’s condition
resulted from the aggravation. If you can make that determination, then you
should award only those damages resulting from the aggravation. However, if
you cannot make that determination, or if it cannot be said that the condition
would have existed apart from the injury, then you should award damages for
the entire condition suffered by Jane Doe.
[501.5(b)] You have also heard that Jane Doe may have been injured in
two events. If you decide that Jane Doe was injured by Richard Rowe and was
later injured by another event, then you should try to separate the damages
caused by the two events and award Jane Doe money only for those damages
caused by Richard Rowe. However, if you decide that you cannot separate
some or all of the damages, you must award Jane Doe any damages that you
cannot separate, as if they were all caused by Richard Rowe.
[501.6] If the greater weight of the evidence shows that Jane Doe has
been permanently injured, you may consider her life expectancy. The
mortality tables received in evidence may be considered in determining how
long Jane Doe may be expected to live. Mortality tables are not binding on
you, but may be considered together with other evidence in the case bearing
on Jane Doe’s health, age, and physical condition, before and after the injury,
in determining the probable length of her life.
[501.7] Any amount of damages which you allow for future medical
expenses or loss of ability to earn money in the future should be reduced to its
present money value, and only the present money value of these future
economic damages should be included in your verdict. The present money
value of future economic damages is the sum of money needed now which,
together with what that sum will earn in the future, will compensate Jane Doe
for these losses as they are actually experienced in future years.
[601.1] In deciding this case, it is your duty as jurors to decide the
issues, and only those issues, that I submit for your determination and to
answer certain questions I ask you to answer on a special form, called a
- 47 -
verdict form. You must come to an agreement about what your answers will
be. Your agreed-upon answers to my questions are called your jury verdict.
In reaching your verdict, you must think about and weigh the testimony
and any documents, photographs, or other material that has been received in
evidence. You may also consider any facts that were admitted or agreed to by
the lawyers. Your job is to determine what the facts are. You may use reason
and common sense to reach conclusions. You may draw reasonable inferences
from the evidence. But you should not guess about things that were not
covered here. And, you must always apply the law as I have explained it to
you.
[601.2(a)] Let me speak briefly about witnesses. In evaluating the
believability of any witness and the weight you will give the testimony of any
witness, you may properly consider the demeanor of the witness while
testifying; the frankness or lack of frankness of the witness; the intelligence of
the witness; any interest the witness may have in the outcome of the case; the
means and opportunity the witness had to know the facts about which the
witness testified; the ability of the witness to remember the matters about
which the witness testified; and the reasonableness of the testimony of the
witness, considered in the light of all the evidence in the case and in the light
of your own experience and common sense.
[601.2(b)] Some of the testimony before you was in the form of opinions
about certain technical subjects.
You may accept such opinion testimony, reject it, or give it the weight
you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion
expressed, and all the other evidence in the case.
[601.5] That is the law you must follow in deciding this case. The
attorneys for the parties will now present their final arguments. When they
are through, I will have a few final instructions about your deliberations.
Following closing arguments, the final instructions are given:
[700] Members of the jury, you have now heard all the evidence, my
instructions on the law that you must apply in reaching your verdict, and the
closing arguments of the attorneys. You will shortly retire to the jury room to
decide this case. Before you do so, I have a few last instructions for you.
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You will have in the jury room all of the evidence that was received
during the trial. In reaching your decision, do not do any research on your
own or as a group. Do not use dictionaries, the Internet, or other reference
materials. Do not investigate the case or conduct any experiments. Do not
contact anyone to assist you, such as a family accountant, doctor, or lawyer.
Do not visit or view the scene of any event involved in this case. If you happen
to pass by the scene, do not stop or investigate. All jurors must see or hear the
same evidence at the same time. Do not read, listen to, or watch any news
accounts of this trial.
Any notes you have taken during the trial may be taken to the jury
room for use during your discussions. Your notes are simply an aid to your
own memory, and neither your notes nor those of any other juror are binding
or conclusive. Your notes are not a substitute for your own memory or that of
other jurors. Instead, your verdict must result from the collective memory
and judgment of all jurors based on the evidence and testimony presented
during the trial.
At the conclusion of the trial, the bailiff will collect all of your notes, and
immediately destroy themwhich will be immediately destroyed. No one will
ever read your notes.
In reaching your verdict, do not let bias, sympathy, prejudice, public
opinion or any other sentiment for or against any party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.
Reaching a verdict is exclusively your job. I cannot participate in that
decision in any way and you should not guess what I think your verdict should
be from something I may have said or done. You should not think that I
prefer one verdict over another. Therefore, in reaching your verdict, you
should not consider anything that I have said or done, except for my specific
instructions to you.
Pay careful attention to all the instructions that I gave you for that is the
law that you must follow. You will have a copy of my instructions with you
when you go to the jury room to deliberate. All the instructions are important
and you must consider all of them together. There are no other laws that
apply to this case and even if you do not agree with these laws, you must use
them in reaching your decision in this case.
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When you go to the jury room, the first thing you should do is choose a
presiding juror. The presiding juror should see to it that your discussions are
orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself, but
only after you have considered the evidence with the other members of the
jury. Feel free to change your mind if you are convinced that your position
should be different. You should all try to agree. But do not give up your
honest beliefs just because the others think differently. Keep an open mind so
that you and your fellow jurors can easily share ideas about the case.
I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these
questions. You must follow my instructions and the form carefully. You must
consider each question separately. Please answer the questions in the order
they appear. After you answer a question, the form tells you what to do next. I
will now read the form to you: (read form of verdict)
Your verdict must be unanimous, that is, your verdict must be agreed to
by each of you. When you are finished filling out the form, your presiding
juror must write the date and sign it at the bottom. Return the form to the
bailiff.
If any of you need to communicate with me for any reason, write me a
note and give it to the bailiff. In your note, do not disclose any vote or split or
the reason for the communication.
You may now retire to decide your verdict.
Special Verdict Form
VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of Defendant, RICHARD
ROWE, which was a legal cause of damage to Plaintiff, JANE DOE?
YES NO
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If your answer to question 1 is NO, your verdict is for the defendant, and you
should not proceed further, except to date and sign this verdict form and return it to
the courtroom. If your answer to question 1 is YES, please answer question 2.
2. Was there negligence on the part of Plaintiff, JANE DOE, which
was a legal cause of her damage?
YES NO
If your answer to question 2 is YES, please answer question 3. If your answer to
question 2 is NO, skip question 3 and answer questions 4, 5, and 6.
3. State the percentage of any negligence which was a legal cause of
damage to Plaintiff, JANE DOE, that you chargeapportion to:
Defendant, RACHEL ROWE %
Plaintiff, JOHN DOE %
Total must be 100%
In determining the total amount of damages, do not make any reduction because of
the negligence, if any, of plaintiff, JANE DOE. If you find Plaintiff, JANE DOE,
was negligent in any degree, the court, in entering judgment, will reduce JANE
DOE’S total amount of damages (100%) by the percentage of negligence which
you find was caused byapportion to JANE DOE.
Please answer questions 4, 5, and 6.
4. What is the total amount of JANE DOE’S
damages for lost earnings in the past, loss of earning
capacity in the future, medical expenses incurred in
the past, and medical expenses to be incurred in the
future? $
5. What is the total amount of JANE DOE’S
damages for pain and suffering, disability, physical
impairment, disfigurement, mental anguish,
inconvenience, aggravation of a disease or physical
defect, and loss of capacity for the enjoyment of life
sustained in the past and to be sustained in the future? $
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TOTAL DAMAGES OF JANE DOE
(add lines 1 and 2) $
6. What is the total amount of JOHN DOE’S damage caused by the
loss of his wife’s:
[a.] comfort, society, and attention? $
[b.] services $
TOTAL DAMAGES OF JOHN DOE
(add lines 3a and 3b) $
SO SAY WE ALL, this day of ,2
FOREPERSON
NOTE ON USE
This model instruction illustrates the instruction to be given when it is
alleged that a driver was comparatively negligent for not wearing a seat belt.
Different factual situations may require that different portions of F.S. 316.614, be
read or paraphrased. See Ridley v. Safety Kleen Corp., 693 So. 2d 934 (Fla. 1996).
MODEL INSTRUCTION NO. 3
Automobile collision; comparative negligence; wrongful death damages;
Fabre issue
Facts of the hypothetical case:
Mary Smith, as personal representative of the estate of John Smith,
deceased, has brought an action against Fast Transport Company for damages
resulting from the instantaneous death of John Smith in a collision between his car
and a tractor trailer owned by Fast Transport Company and driven by Joe Johnson,
Fast Transport’s employee. There is no issue as to Fast Transport’s responsibility
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for any negligence of its driver, Johnson. Questions of negligence, comparative
negligence, causation and damages for the estate and for the benefit of the widow
and a daughter, Nancy, who is 15 years old are to be submitted to the jury.
Additionally, Joe Johnson claims that his actions were due to the negligence of
another driver, Bill Jones.
The court’s instruction:
The committee assumes that the court will give these instructions at the
beginning of the case and that these instructions will be given again before final
argument. When given at the beginning of the case, 202.1 will be used in lieu of
401.1 and these instructions will be followed by the applicable portions of 202.2
through 202.5. See Model Instruction No. 1 for a full illustration of an instruction
at the beginning of the case.
[401.1] Members of the jury, you have now heard and received all of the
evidence in this case. I am now going to tell you about the rules of law that you
must use in reaching your verdict. You will recall at the beginning of the case
I told you that if, at the end of the case I decided that different law applies, I
would tell you so. These instructions are, however, the same as what I gave you
at the beginning and it is these rules of law that you must now follow. When I
finish telling you about the rules of law, the attorneys will present their final
arguments and you will then retire to decide your verdict.
[401.2] The claims and defenses in this case are as follows. Mary Smith,
as personal representative of the estate of John Smith, claims that Fast
Transport’s driver, Joe Johnson, was negligent in the operation of the vehicle
he was driving which caused the death of John Smith.
Fast Transport denies that claim and also claims that John Smith was
himself negligent in the operation of his vehicle, which caused his death.
Additionally, Fast Transport claims that John Smith’s death was due to
negligence of Bill Jones, who is not a party to this case.
The parties must prove their claims by the greater weight of the
evidence. I will now define some of the terms you will use in deciding this case.
[401.3] “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.
[401.4] Negligence is the failure to use reasonable care, which is the care
that a reasonably careful person would use under like circumstances.
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Negligence is doing something that a reasonably careful person would not do
under like circumstances or failing to do something that a reasonably careful
person would do under like circumstances.
[401.12(a)] Negligence is a legal cause of a death if it directly and in
natural and continuous sequence produces or contributes substantially to
producing such death, so that it can reasonably be said that, but for the
negligence, the death would not have occurred.
[401.12(b)] In order to be regarded as a legal cause of loss, injury, or
damage negligence need not be the only cause. Negligence may be a legal
cause of death even though it operates in combination with the act of another
or some other cause if the negligence contributes substantially to producing
such death.
[401.13(b)] The court has determined and now instructs you that Fast
Transport is responsible for any negligence of its employee, Joe Johnson.
[401.18] The issues you must decide on Mary Smith’s claim against Fast
Transport are whether Fast Transport’s employee, Joe Johnson, was
negligent in the operation of his vehicle, and, if so, whether that negligence
was a legal cause of John Smith’s death.
[401.21] If the greater weight of the evidence does not support Mary
Smith’s claim, your verdict should be for Fast Transport.
[401.22] If, however, the greater weight of the evidence supports Mary
Smith’s claim, then you shall consider the defenses raised by Fast Transport.
[401.22(a)] On Fast Transport’s first defense, the issues for you to decide
are whether John Smith was himself negligent in the operation of his vehicle
and, if so, whether that negligence was a contributing legal cause of his death.
[401.22(f)] On Fast Transport’s second defense, the issues for you to
decide are whether Bill Jones was also negligent in the operation of his vehicle
and, if so, whether that negligence was a contributing legal cause of John
Smith’s death.
[401.23] If the greater weight of the evidence does not support Fast
Transport’s defenses and the greater weight of the evidence supports Mary
Smith’s claim, then your verdict should be for Mary Smith as personal
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representative of the estate of John Smith, in the total amount of the damages
sustained by those for whom this action is brought.
If, however, the greater weight of the evidence shows that either John
Smith and/or Bill Jones were negligent and that the negligence of one or each
contributed as a legal cause to the death of John Smith, you should decide and
write on the verdict form what percentage of the total negligence of all parties
to this action was caused byyou apportion to each of them.
[502.1(b)] If your verdict is for Fast Transport, you will not consider the
matter of damages. But if the greater weight of the evidence supports Mary
Smith’s claim, as personal representative of the estate of John Smith, you
should determine and write on the verdict form, in dollars, the total amount of
loss, injury, or damage which the greater weight of the evidence shows the
estate of John Smith and Mary Smith and Nancy Smith sustained as a result
of John Smith’s death, including any damages that Mary Smith and Nancy
Smith are reasonably certain to experience in the future.
[502.2] In determining any damages sustained by John Smith’s estate,
you shall consider the following elements:
[502.2(b)] The estate’s loss of net accumulations: “Net accumulations” is
the part of the decedent’s net income from salary or business after taxes,
including pension benefits, which the decedent, after paying his personal
expenses and monies for the support of his survivors, would have left as part
of his estate if he had lived his normal life expectancy.
[502.2(c)] Medical and funeral expenses due to the decedent’s death
which have become a charge against the decedent’s estate.
In determining any damages to be awarded for the benefit of Mary
Smith and Nancy Smith, you shall consider certain additional elements of
damage. There is no exact standard for fixing the compensation to be awarded
for these elements. Any such award should be fair and just in the light of the
evidence regarding the following elements.
[502.2(d)] Mary Smith’s loss of John Smith’s companionship and
protection, and her mental pain and suffering as a result of John Smith’s
death. In determining the duration of the losses, you may consider the life
expectancy of the surviving spouse, Mary Smith, together with the other
evidence in the case.
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[502.2(e)] The loss by Nancy Smith of parental companionship,
instruction and guidance, and her mental pain and suffering as a result of
John Smith’s death. In determining the duration of those losses, you may
consider the life expectancy of the surviving child, Nancy Smith, together with
the other evidence in the case.
In determining any damages to be awarded for the benefit of Mary
Smith and Nancy Smith, you shall also consider these additional elements of
damage.
[502.2(g)] The loss of support and services sustained by Mary Smith and
Nancy Smith, by reason of John Smith’s injury and death. In determining the
duration of any future loss, you may consider the joint life expectancy of the
survivor and the decedent, and the period of minority, ending at age 25, of a
healthy minor child.
In evaluating past and future loss of support and services, you shall
consider the survivor’s relationship to John Smith, the amount of John
Smith’s probable net income available for distribution to Mary Smith and
Nancy Smith and the replacement value of John Smith’s services to the
survivor. “Support” includes contributions in kind, as well as sums of money.
“Services” means tasks regularly performed by the decedent for a survivor
that will be a necessary expense to the survivor because of the decedent’s
death.
[502.3] Any damages that you find were sustained by the decedent’s
estate and by each survivor shall be separately stated in your verdict.
[502.5] In determining the total amount of any damages sustained by
the John Smith estate and Mary Smith and Nancy Smith as a result of his
death, you should not make any reduction because of the negligence, if any, of
John Smith or Bill Jones. The court will enter a judgment based on your
verdict and, if you find that John Smith or Bill Jones were negligent in any
degree, the court, in entering judgment, will reduce the total amount of
damages by the percentage of negligence which you find was caused by John
Smith and/or Bill JonesThe court in entering judgment will make the
appropriate reductions.
[502.6(a)] In determining how long John Smith would have lived, had he
lived out his normal life, you may consider his life expectancy at the time of
his death. The mortality tables received in evidence may be considered in
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determining how long he may have been expected to live. Mortality tables are
not binding on you, but may be considered together with other evidence in the
case bearing on his health, age and physical condition, before his death, in
determining the probable length of his life.
[502.6(b)] In determining the duration of any future loss sustained by
Mary Smith and Nancy Smith by reason of the death of John Smith, you may
consider the life expectancy of each. The mortality tables received in evidence
may be considered, together with other evidence in the case bearing on the
health, age, and physical condition of each, in determining how long each may
be expected to live.
[502.7] Any amount of damages which you allow for lost net
accumulations or for loss of the decedent’s support and services in the future
should be reduced to its present money value, and only the present money
value of these future economic damages should be included in your verdict.
The present money value of future economic damages is the sum of money
needed now which, together with what that sum will earn in the future, will
compensate Mary Smith and Nancy Smith for these losses as they are actually
experienced in future years.
[601.1] In deciding this case, it is your duty as jurors to decide the
issues, and only those issues, that I submit for your determination and to
answer certain questions I ask you to answer on a special form, called a
verdict form. You must come to an agreement about what your answers will
be. Your agreed-upon answers to my questions are called your jury verdict.
In reaching your verdict, you must think about and weigh the testimony
and any documents, photographs, or other material that has been received in
evidence. You may also consider any facts that were admitted or agreed to by
the lawyers. Your job is to determine what the facts are. You may use reason
and common sense to reach conclusions. You may draw reasonable inferences
from the evidence. But you should not guess about things that were not
covered here. And, you must always apply the law as I have explained it to
you.
[601.2(a)] Let me speak briefly about witnesses. In evaluating the
believability of any witness and the weight you will give the testimony of any
witness, you may properly consider the demeanor of the witness while
testifying; the frankness or lack of frankness of the witness; the intelligence of
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the witness; any interest the witness may have in the outcome of the case; the
means and opportunity the witness had to know the facts about which the
witness testified; the ability of the witness to remember the matters about
which the witness testified; and the reasonableness of the testimony of the
witness, considered in the light of all the evidence in the case and in the light
of your own experience and common sense.
[601.2(b)] Some of the testimony before you was in the form of opinions
about certain technical subjects.
You may accept such opinion testimony, reject it, or give it the weight
you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion
expressed, and all the other evidence in the case.
[601.5] That is the law you must follow in deciding this case. The
attorneys for the parties will now present their final arguments. When they
are through, I will have a few final instructions about your deliberations.
Following closing arguments, the final instructions are given:
[700] Members of the jury, you have now heard all the evidence, my
instructions on the law that you must apply in reaching your verdict, and the
closing arguments of the attorneys. You will shortly retire to the jury room to
decide this case. Before you do so, I have a few last instructions for you.
You will have in the jury room all of the evidence that was received
during the trial. In reaching your decision, do not do any research on your
own or as a group. Do not use dictionaries, the Internet, or other reference
materials. Do not investigate the case or conduct any experiments. Do not
contact anyone to assist you, such as a family accountant, doctor, or lawyer.
Do not visit or view the scene of any event involved in this case. If you happen
to pass by the scene, do not stop or investigate. All jurors must see or hear the
same evidence at the same time. Do not read, listen to, or watch any news
accounts of this trial.
Any notes you have taken during the trial may be taken to the jury
room for use during your discussions. Your notes are simply an aid to your
own memory, and neither your notes nor those of any other juror are binding
or conclusive. Your notes are not a substitute for your own memory or that of
other jurors. Instead, your verdict must result from the collective memory
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and judgment of all jurors based on the evidence and testimony presented
during the trial.
At the conclusion of the trial, the bailiff will collect all of your notes, and
immediately destroy themwhich will be immediately destroyed. No one will
ever read your notes.
In reaching your verdict, do not let bias, sympathy, prejudice, public
opinion or any other sentiment for or against any party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.
Reaching a verdict is exclusively your job. I cannot participate in that
decision in any way and you should not guess what I think your verdict should
be from something I may have said or done. You should not think that I
prefer one verdict over another. Therefore, in reaching your verdict, you
should not consider anything that I have said or done, except for my specific
instructions to you.
Pay careful attention to all the instructions that I gave you for that is the
law that you must follow. You will have a copy of my instructions with you
when you go to the jury room to deliberate. All the instructions are important
and you must consider all of them together. There are no other laws that
apply to this case and even if you do not agree with these laws, you must use
them in reaching your decision in this case.
When you go to the jury room, the first thing you should do is choose a
presiding juror. The presiding juror should see to it that your discussions are
orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself, but
only after you have considered the evidence with the other members of the
jury. Feel free to change your mind if you are convinced that your position
should be different. You should all try to agree. But do not give up your
honest beliefs just because the others think differently. Keep an open mind so
that you and your fellow jurors can easily share ideas about the case.
I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these
questions. You must follow my instructions and the form carefully. You must
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consider each question separately. Please answer the questions in the order
they appear. After you answer a question, the form tells you what to do next. I
will now read the form to you: (read form of verdict)
Your verdict must be unanimous, that is, your verdict must be agreed to
by each of you. When you are finished filling out the form, your presiding
juror must write the date and sign it at the bottom. Return the form to the
bailiff.
If any of you need to communicate with me for any reason, write me a
note and give it to the bailiff. In your note, do not disclose any vote or split or
the reason for the communication.
You may now retire to decide your verdict.
Special Verdict Form
VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of Joe Johnson, FAST
TRANSPORT COMPANY’S driver, which was a legal cause of the death of
John Smith?
YES NO
If your answer to question 1 is NO, your verdict is for the defendant, and you
should not proceed further, except to date and sign this verdict form and
return it to the courtroom. If your answer to question 1 is YES, please answer
question 2.
2. Was there negligence on the part of the decedent, John Smith,
which was a legal cause of his death?
YES NO
3. Was there negligence on the part of Bill Jones, which was a legal
cause of John Smith’s death?
YES NO
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If your answer to either question 2 or 3 is YES, please answer question
4. If your answer to questions 2 and 3 is NO, skip question 4 and answer
questions 5, 6, and 7.
4. State the percentage of any negligence, which was a legal cause of
John Smith’s death, that you chargeapportion to:
Joe Johnson (Fast Transit
Company’s driver) %
John Smith (decedent) %
Bill Jones (other driver) %
Total must be 100%
In determining the total amount of damages, do not make any reduction
because of the negligence, if any, of the decedent, John Smith or of Bill Jones.
If you find that either John Smith or Bill Jones were to any extent negligent,
the court, in entering judgment, will make an appropriate reduction in the
damages awarded.
Please answer questions 5, 6, and 7.
DAMAGES OF THE ESTATE
5. What is the total amount of any damages
lost by the estate for the amount of any medical or
funeral expenses resulting from John Smith’s injury
and death? $
DAMAGES OF MARY SMITH
6a. What is the total amount of damages
sustained by MARY SMITH for the loss of
John Smith’s support and services? $
6b. What is the total amount of damages
sustained by MARY SMITH for the loss of her
husband’s companionship and protection and
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from her pain and suffering as a result of
John Smith’s injury and death? $
TOTAL DAMAGES OF MARY SMITH
(add lines 6a and 6b) $
DAMAGES OF NANCY SMITH
7a. What is the total amount of any damages
sustained by NANCY SMITH for her loss of John
Smith’s support and services? $
7b. What is the amount of damages
sustained by NANCY SMITH for the loss of
parental companionship, instruction and
guidance and NANCY SMITH’S pain and
suffering as a result of John Smith’s injury
and death? $
TOTAL DAMAGES OF NANCY SMITH
(add lines 7a and 7b) $
SO SAY WE ALL, this day of ,2
FOREPERSON
MODEL INSTRUCTION NO. 4
Automobile collision; comparative negligence; claim and counterclaim
Facts of the hypothetical case:
Betty Jones and Rachel Rowe were both injured when their automobiles
collided at an intersection. Betty Jones sued Rachel Rowe, who denied the
allegations of negligence, pleaded in defense that Betty Jones was negligent and
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counterclaimed for her own damages. On the counterclaim, Betty Jones denied that
she was negligent and pleaded in defense that Rachel Rowe was negligent.
The court’s instruction:
The committee assumes that the court will give these instructions at the
beginning of the case and that these instructions will be given again before final
argument. When given at the beginning of the case, 202.1 will be used in lieu of
401.1 and these instructions will be followed by the applicable portions of 202.2
through 202.5. See Model Instruction No. 1 for a full illustration of an instruction
at the beginning of the case.
[401.1] Members of the jury, you have now heard and received all of the
evidence in this case. I am now going to tell you about the rules of law that you
must use in reaching your verdict. You will recall at the beginning of the case
I told you that if, at the end of the case I decided that different law applies, I
would tell you so. These instructions are, however, the same as what I gave you
at the beginning and it is these rules of law that you must now follow. When I
finish telling you about the rules of law, the attorneys will present their final
arguments and you will then retire to decide your verdict.
[401.2] The claims and defenses in this case are as follows. Betty Jones
claims that Rachel Rowe was negligent in the operation of the vehicle she was
driving which caused her harm.
Rachel Rowe denies that claim and claims instead that it was Betty Jones
who was negligent in the operation of her vehicle, which caused harm to
Rachel Rowe.
The parties must prove their claims by the greater weight of the
evidence. I will now define some of the terms you will use in deciding this case.
[401.3] “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.
[401.4] Negligence is the failure to use reasonable care, which is the care
that a reasonably careful person would use under like circumstances.
Negligence is doing something that a reasonably careful person would not do
under like circumstances or failing to do something that a reasonably careful
person would do under like circumstances.
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[401.9] (Read or paraphrase the applicable statute or refer to the ordinance
or regulation admitted in evidence.) Violation of this statute is evidence of
negligence. It is not, however, conclusive evidence of negligence. If you find
that either Rachel Rowe or Betty Jones violated this statute, you may consider
that fact, together with the other facts and circumstances, in deciding whether
she was negligent.
[401.12(a)] Negligence is a legal cause of loss, injury, or damage if it
directly and in natural and continuous sequence produces or contributes
substantially to producing such loss, injury, or damage, so that it can
reasonably be said that, but for the negligence, the loss, injury, or damage
would not have occurred.
[401.12(b)] Negligence may be a legal cause of loss, injury, or damage
even though it operates in combination with some other cause if the negligence
contributes substantially to producing such loss, injury, or damage.
[401.18] The issues you must decide on Betty Jones’ claim against
Rachel Rowe are whether Rachel Rowe was negligent in the operation of her
vehicle, and, if so, whether that negligence was a legal cause of the loss, injury,
or damage to Betty Jones.
[401.21] If the greater weight of the evidence does not support Betty
Jones’ claim, your verdict on that claim should be for Rachel Rowe.
Similarly, the issues for your determination on the claim of Rachel Rowe
against Betty Jones are whether Betty Jones was negligent in the operation her
vehicle, and, if so, whether such negligence was a legal cause of loss, injury, or
damage to Rachel Rowe.
If the greater weight of the evidence does not support Rachel Rowe’s
claim, then your verdict on that claim should be for Betty Jones.
If the greater weight of the evidence supports the claim of Betty Jones, and
shows that the negligence of Rachel Rowe was a legal cause of loss, injury, or
damage to Betty Jones, but does not support the claim of Rachel Rowe, your
verdict should be for Betty Jones in the total amount of her damages.
Similarly, if the greater weight of the evidence supports the claim of
Rachel Rowe and shows that the negligence of Betty Jones was a legal cause of
loss, injury, or damage to Rachel Rowe, but does not support the claim of Betty
- 64 -
Jones, your verdict should be for Rachel Rowe in the total amount of her
damages.
If, however, the greater weight of the evidence shows that both Betty Jones
and Rachel Rowe were negligent, and that the negligence of each contributed as
a legal cause of loss, injury, or damage to each, you should determine what
percentage of the total negligence of both parties to this action was caused
byyou apportion to each of them.
[501.1(b)] If your verdict is for Rachel Rowe on the claim of Betty Jones
you will not consider the matter of Betty Jones’ damages. Similarly, if your
verdict is for Betty Jones on the claim of Rachel Rowe, you will not consider the
matter of Rachel Rowe’s damages. But if the greater weight of the evidence
supports the claim of either Betty Jones or Rachel Rowe, or both of their claims,
you should determine and write on the verdict form, in dollars, the total amount
of loss, injury, or damages which the greater weight of the evidence shows will
fairly and adequately compensate the claimant for such loss, injury, or damage,
including any damages the claimant is reasonably certain to incur or experience
in the future. You shall consider the following elements:
[501.2(a)] Any bodily injury sustained, any resulting pain and suffering,
disability or physical impairment, disfigurement, mental anguish,
inconvenience or loss of capacity for the enjoyment of life experienced in the
past, or to be experienced in the future. There is no exact standard for
measuring such damage. The amount should be fair and just, in the light of
the evidence.
[501.2(b)] The reasonable expense of hospitalization and medical care
and treatment necessarily or reasonably obtained in the past, or to be so
obtained in the future.
[501.2(c)] Any earnings lost in the past, and any loss of ability to earn
money in the future.
[501.2(h)] Any damage to Betty Jones’ or Rachel Rowe’s automobile.
The measure of such damage is the reasonable cost of repair, if it was
practicable to repair the automobile, with due allowance for any difference
between its value immediately before the collision and its value after repair.
You shall also take into consideration any loss for towing or storage charges
and by being deprived of the use of her automobile during the period
reasonably required for its repair.
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[501.4] In determining the total amount of damages, you should not
make any reduction because of the negligence, if any, of Betty Jones and/or
Rachel Rowe. The court will enter a judgment based on your verdict and, if
you find that either Betty Jones and/or Rachel Rowe were negligent in any
degree, the court, in entering judgment, will reduce the total amount of
damages by the percentage of negligence, which you find was caused byyou
apportion to Betty Jones and/or Rachel Rowe.
[501.6] If the greater weight of the evidence shows that either Betty
Jones and/or Rachel Rowe have been permanently injured, you may consider
her life expectancy. The mortality tables received in evidence may be
considered in determining how long Betty Jones and/or Rachel Rowe may be
expected to live. Mortality tables are not binding on you, but may be
considered together with other evidence in the case bearing on Betty Jones’
and/or Rachel Rowe’s health, age and physical condition, before and after the
injury, in determining the probable length of her life.
[501.7] Any amount of damages which you allow for future medical
expenses or loss of ability to earn money in the future should be reduced to its
present money value, and only the present money value of these future
economic damages should be included in your verdict. The present money
value of future economic damages is the sum of money needed now which,
together with what that sum will earn in the future, will compensate Betty
Jones and/or Rachel Rowe for these losses as they are actually experienced in
future years.
[601.1] In deciding this case, it is your duty as jurors to decide the
issues, and only those issues, that I submit for your determination and to
answer certain questions I ask you to answer on a special form, called a
verdict form. You must come to an agreement about what your answers will
be. Your agreed-upon answers to my questions are called your jury verdict.
In reaching your verdict, you must think about and weigh the testimony
and any documents, photographs, or other material that has been received in
evidence. You may also consider any facts that were admitted or agreed to by
the lawyers. Your job is to determine what the facts are. You may use reason
and common sense to reach conclusions. You may draw reasonable inferences
from the evidence. But you should not guess about things that were not
covered here. And, you must always apply the law as I have explained it to
you.
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[601.2(a)] Let me speak briefly about witnesses. In evaluating the
believability of any witness and the weight you will give the testimony of any
witness, you may properly consider the demeanor of the witness while
testifying; the frankness or lack of frankness of the witness; the intelligence of
the witness; any interest the witness may have in the outcome of the case; the
means and opportunity the witness had to know the facts about which the
witness testified; the ability of the witness to remember the matters about
which the witness testified; and the reasonableness of the testimony of the
witness, considered in the light of all the evidence in the case and in the light
of your own experience and common sense.
[601.2(b)] Some of the testimony before you was in the form of opinions
about certain technical subjects.
You may accept such opinion testimony, reject it, or give it the weight
you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion
expressed, and all the other evidence in the case.
[601.5] That is the law you must follow in deciding this case. The
attorneys for the parties will now present their final arguments. When they
are through, I will have a few final instructions about your deliberations.
Following closing arguments, the final instructions are given:
[700] Members of the jury, you have now heard all the evidence, my
instructions on the law that you must apply in reaching your verdict, and the
closing arguments of the attorneys. You will shortly retire to the jury room to
decide this case. Before you do so, I have a few last instructions for you.
You will have in the jury room all of the evidence that was received
during the trial. In reaching your decision, do not do any research on your
own or as a group. Do not use dictionaries, the Internet, or other reference
materials. Do not investigate the case or conduct any experiments. Do not
contact anyone to assist you, such as a family accountant, doctor, or lawyer.
Do not visit or view the scene of any event involved in this case. If you happen
to pass by the scene, do not stop or investigate. All jurors must see or hear the
same evidence at the same time. Do not read, listen to, or watch any news
accounts of this trial.
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Any notes you have taken during the trial may be taken to the jury
room for use during your discussions. Your notes are simply an aid to your
own memory, and neither your notes nor those of any other juror are binding
or conclusive. Your notes are not a substitute for your own memory or that of
other jurors. Instead, your verdict must result from the collective memory
and judgment of all jurors based on the evidence and testimony presented
during the trial.
At the conclusion of the trial, the bailiff will collect all of your notes, and
immediately destroy themwhich will be immediately destroyed. No one will
ever read your notes.
In reaching your verdict, do not let bias, sympathy, prejudice, public
opinion, or any other sentiment for or against any party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.
Reaching a verdict is exclusively your job. I cannot participate in that
decision in any way and you should not guess what I think your verdict should
be from something I may have said or done. You should not think that I
prefer one verdict over another. Therefore, in reaching your verdict, you
should not consider anything that I have said or done, except for my specific
instructions to you.
Pay careful attention to all the instructions that I gave you for that is the
law that you must follow. You will have a copy of my instructions with you
when you go to the jury room to deliberate. All the instructions are important
and you must consider all of them together. There are no other laws that
apply to this case and even if you do not agree with these laws, you must use
them in reaching your decision in this case.
When you go to the jury room, the first thing you should do is choose a
presiding juror. The presiding juror should see to it that your discussions are
orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself, but
only after you have considered the evidence with the other members of the
jury. Feel free to change your mind if you are convinced that your position
should be different. You should all try to agree. But do not give up your
- 68 -
honest beliefs just because the others think differently. Keep an open mind so
that you and your fellow jurors can easily share ideas about the case.
I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these
questions. You must follow my instructions and the form carefully. You must
consider each question separately. Please answer the questions in the order
they appear. After you answer a question, the form tells you what to do next. I
will now read the form to you: (read form of verdict)
Your verdict must be unanimous, that is, your verdict must be agreed to
by each of you. When you are finished filling out the form, your presiding
juror must write the date and sign it at the bottom. Return the form to the
bailiff.
If any of you need to communicate with me for any reason, write me a
note and give it to the bailiff. In your note, do not disclose any vote or split or
the reason for the communication.
You may now retire to decide your verdict.
Special Verdict Form
VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of RACHEL ROWE which was
a legal cause of damage to BETTY JONES?
YES NO
2. Was there negligence on the part of BETTY JONES which was a
legal cause of damage to RACHEL ROWE?
YES NO
If your answers to questions 1 and 2 are both NO, your verdict on each claim is for
the defendant, and you should not proceed further except to date and sign this
verdict form and return it to the courtroom. If your answer to either question 1 or 2
is YES, please answer question 3.
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3. State the percentage of any negligence that you chargeapportion
to:
Rachel Rowe %
Betty Jones %
Total must be 100%
Your answers to question 3 must total 100%, and should include a zero for
any party you found not negligent in answer to questions 1 and 2. Please answer
question 4 only if your answer to question 1 is YES. Answer question 5 only if
your answer to question 2 is YES.
In determining the amount of damages, do not make any reduction because
of the negligence, if any, of BETTY JONES and/or RACHEL ROWE. If you find
that BETTY JONES and/or RACHEL ROWE were to any extent negligent, the
court in entering judgment will make an appropriate reduction in the damages
awarded.
Please answer questions 4, 5, 6 and 7.
DAMAGES OF BETTY JONES
4. What is the total amount of BETTY JONES’
damages for lost earnings in the past, loss of earning
capacity in the future, medical expenses incurred in
the past, medical expenses to be incurred in the future? $
5. What is the total amount of BETTY JONES’
damages for pain and suffering, disability, physical
impairment, disfigurement, mental anguish,
inconvenience, aggravation of a disease or physical
defect, and loss of capacity for the enjoyment of life
sustained in the past and to be sustained in the future? $
TOTAL DAMAGES OF BETTY JONES
(add lines 4 and 5) $
DAMAGES OF RACHEL ROWE
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6. What is the total amount of RACHEL
ROWE’S damages for lost earnings in the past,
loss of earning capacity in the future, medical
expenses incurred in the past, medical expenses
to be incurred in the future? $
7. What is the total amount of RACHEL
ROWE’S damages for pain and suffering, disability,
physical impairment, disfigurement, mental anguish,
inconvenience, aggravation of a disease or physical
defect and loss of capacity for the enjoyment of life
sustained in the past and to be sustained in the future? $
TOTAL DAMAGES OF RACHEL ROWE
(add lines 6 and 7) $
SO SAY WE ALL, this day of ,2
FOREPERSON
MODEL INSTRUCTION NO. 5
Injury in three-car collision; settlement with injured party by one tortfeasor;
independent contribution claim by him against others; reasonableness of
settlement as well as liability contested
Facts of the hypothetical case:
John Adams, driver of one of three vehicles involved in a collision, pre-
sented a claim for his injuries to Marvel Transport Co., owner of one of the other
vehicles. Marvel, taking into consideration Adams’ injuries, his comparative
negligence and its potential exposure, paid Adams $75,000.00 and obtained a
general release of all responsible persons. Marvel then sued the owner of the other
vehicle, Perishable Produce, Inc., for contribution. The issues to be resolved by the
jury are whether Perishable’s driver was negligent in contributing to Adams’
injuries, whether the amount paid by Marvel was reasonable and, if Perishable’s
- 71 -
driver was negligent, the relative degrees of responsibility of Marvel and
Perishable.
The court’s instruction:
The committee assumes that the court will give these instructions at the
beginning of the case and that these instructions will be given again before final
argument. When given at the beginning of the case, 202.1 will be used in lieu of
412.3 and these instructions will be followed by the applicable portions of 202.2
through 202.5. See Model Instruction No. 1 for a full illustration of an instruction
at the beginning of the case.
[412.3] Members of the jury, you have now heard and received all of the
evidence in this case. I am now going to tell you about the rules of law that you
must use in reaching your verdict. You will recall at the beginning of the case
I told you that if, at the end of the case I decided that different law applies, I
would tell you so. These instructions are, however, the same as what I gave you
at the beginning and it is these rules of law that you must now follow. When I
finish telling you about the rules of law, the attorneys will present their final
arguments and you will then retire to decide your verdict.
[412.4] The claims and defenses in this case are as follows. Marvel
Transport Co. seeks to recover from Perishable Produce, Inc., part of the sum
of $75,000.00, which Marvel Transport Co. paid John Adams to satisfy the
claim of John Adams resulting from his injury in the three vehicle accident
involving John Adams, and vehicles owned by Marvel Transport Co. and
Perishable Produce, Inc. Marvel Transport Co. claims that Perishable
Produce, Inc. was partly negligent in causing the collision.
Perishable Produce, Inc. denies that claim.
Marvel Transport Co. must prove its claim by the greater weight of the
evidence. I will now define some of the terms you will use in deciding this case.
[412.5] “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.
[412.6] Negligence is the failure to use reasonable care, which is the care
that a reasonably careful person would use under like circumstances.
Negligence is doing something that a reasonably careful person would not do
- 72 -
under like circumstances or failing to do something that a reasonably careful
person would do under like circumstances.
[412.7(a)] Negligence is a legal cause of loss, injury, or damage if it
directly and in natural and continuous sequence produces or contributes
substantially to producing such loss, injury, or damage, so that it can
reasonably be said that, but for the negligence, the loss, injury, or damage
would not have occurred.
[412.7(b)] In order to be regarded as a legal cause of loss, injury, or
damage negligence need not be the only cause. Negligence may be a legal
cause of loss, injury, or damage even though it operates in combination with
the act of another or some other cause if the negligence contributes sub-
stantially to producing such loss, injury, or damage.
[412.8] The issues for you to decide are whether Tom Jones, the
employee of Perishable, was negligent in his operation of Perishable’s truck,
which was involved in the collision and, if so, whether such negligence was a
legal cause of injury or damage to John Adams.
If the greater weight of the evidence does not support the claim of
Marvel Transport Co. against Perishable Produce, Inc., your verdict should
be for Perishable Produce, Inc.
However, if the greater weight of the evidence supports the claim of
Marvel Transport Co., you should also determine whether the amount of
money paid by Marvel Transport Co. to John Adams was reasonable under
all of the circumstances shown by the evidence. If the greater weight of the
evidence shows that the amount of money paid by Marvel Transport to John
Adams did not exceed a reasonable amount under all of the circumstances,
you should so find by your verdict. However, if the amount of money paid by
Marvel Transport Co. to John Adams exceeded a reasonable amount, you
should determine the amount which would have been reasonable under all of
the circumstances for Marvel Transport Co. to pay to John Adams in
settlement. The court will then determine the amount that Marvel Transport
Co. will recover from Perishable Produce, Inc.
In deciding whether the amount of money paid by Marvel Transport
Co. to John Adams was reasonable, I instruct you that John Adams would
have been able to sue Marvel Transport Co. for an amount of money that
would fairly and adequately compensate him for his loss, injury, and damage,
- 73 -
including any damage that John Adams would have been reasonably certain
to incur or experience in the future, for the following elements:
[501.2(a)] Any bodily injury sustained by John Adams and any resulting
pain and suffering, disability or physical impairment, disfigurement, mental
anguish, inconvenience or loss of capacity for the enjoyment of life that he had
experienced in the past, or would have experienced in the future. There is no
exact standard for measuring such damage. The amount would have had to
have been fair and just, in the light of the evidence about his injuries.
[501.2(b)] The reasonable expense of hospitalization and medical care
and treatment necessarily or reasonably obtained by John Adams in the past,
or to be so obtained by him in the future.
[501.2(c)] Any earnings John Adams lost in the past, and any loss of
ability to earn money he had in the future.
[501.2(h)] Any damage to John Adams’ automobile. The measure of
such damage is the reasonable cost of repair, if it was practicable to repair the
automobile, with due allowance for any difference between its value
immediately before the collision and its value after repair. It would also
include any loss John Adams sustained for towing or storage charges and
from being deprived of the use of his automobile during the period reasonably
required for its repair.
[601.1] In deciding this case, it is your duty as jurors to decide the
issues, and only those issues, that I submit for your determination and to
answer certain questions I ask you to answer on a special form, called a
verdict form. You must come to an agreement about what your answers will
be. Your agreed-upon answers to my questions are called your jury verdict.
In reaching your verdict, you must think about and weigh the testimony
and any documents, photographs, or other material that has been received in
evidence. You may also consider any facts that were admitted or agreed to by
the lawyers. Your job is to determine what the facts are. You may use reason
and common sense to reach conclusions. You may draw reasonable inferences
from the evidence. But you should not guess about things that were not
covered here. And, you must always apply the law as I have explained it to
you.
- 74 -
[601.2(a)] Let me speak briefly about witnesses. In evaluating the
believability of any witness and the weight you will give the testimony of any
witness, you may properly consider the demeanor of the witness while
testifying; the frankness or lack of frankness of the witness; the intelligence of
the witness; any interest the witness may have in the outcome of the case; the
means and opportunity the witness had to know the facts about which the
witness testified; the ability of the witness to remember the matters about
which the witness testified; and the reasonableness of the testimony of the
witness, considered in the light of all the evidence in the case and in the light
of your own experience and common sense.
[601.2(b)] Some of the testimony before you was in the form of opinions
about certain technical subjects.
You may accept such opinion testimony, reject it, or give it the weight
you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion
expressed, and all the other evidence in the case.
[601.5] That is the law you must follow in deciding this case. The
attorneys for the parties will now present their final arguments. When they
are through, I will have a few final instructions about your deliberations.
Following closing arguments, the final instructions are given:
[700] Members of the jury, you have now heard all the evidence, my
instructions on the law that you must apply in reaching your verdict, and the
closing arguments of the attorneys. You will shortly retire to the jury room to
decide this case. Before you do so, I have a few last instructions for you.
You will have in the jury room all of the evidence that was received
during the trial. In reaching your decision, do not do any research on your
own or as a group. Do not use dictionaries, the Internet, or other reference
materials. Do not investigate the case or conduct any experiments. Do not
contact anyone to assist you, such as a family accountant, doctor, or lawyer.
Do not visit or view the scene of any event involved in this case. If you happen
to pass by the scene, do not stop or investigate. All jurors must see or hear the
same evidence at the same time. Do not read, listen to, or watch any news
accounts of this trial.
- 75 -
Any notes you have taken during the trial may be taken to the jury
room for use during your discussions. Your notes are simply an aid to your
own memory, and neither your notes nor those of any other juror are binding
or conclusive. Your notes are not a substitute for your own memory or that of
other jurors. Instead, your verdict must result from the collective memory
and judgment of all jurors based on the evidence and testimony presented
during the trial.
At the conclusion of the trial, the bailiff will collect all of your notes, and
immediately destroy themwhich will be immediately destroyed. No one will
ever read your notes.
In reaching your verdict, do not let bias, sympathy, prejudice, public
opinion, or any other sentiment for or against any party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.
Reaching a verdict is exclusively your job. I cannot participate in that
decision in any way and you should not guess what I think your verdict should
be from something I may have said or done. You should not think that I
prefer one verdict over another. Therefore, in reaching your verdict, you
should not consider anything that I have said or done, except for my specific
instructions to you.
Pay careful attention to all the instructions that I gave you for that is the
law that you must follow. You will have a copy of my instructions with you
when you go to the jury room to deliberate. All the instructions are important
and you must consider all of them together. There are no other laws that
apply to this case and even if you do not agree with these laws, you must use
them in reaching your decision in this case.
When you go to the jury room, the first thing you should do is choose a
presiding juror. The presiding juror should see to it that your discussions are
orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself, but
only after you have considered the evidence with the other members of the
jury. Feel free to change your mind if you are convinced that your position
should be different. You should all try to agree. But do not give up your
- 76 -
honest beliefs just because the others think differently. Keep an open mind so
that you and your fellow jurors can easily share ideas about the case.
I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these
questions. You must follow my instructions and the form carefully. You must
consider each question separately. Please answer the questions in the order
they appear. After you answer a question, the form tells you what to do next. I
will now read the form to you: (read form of verdict)
Your verdict must be unanimous, that is, your verdict must be agreed to
by each of you. When you are finished filling out the form, your presiding
juror must write the date and sign it at the bottom. Return the form to the
bailiff.
If any of you need to communicate with me for any reason, write me a
note and give it to the bailiff. In your note, do not disclose any vote or split or
the reason for the communication.
You may now retire to decide your verdict.
Special Verdict Form
VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of Tom Jones, the driver of the
truck owned by Defendant, PERISHABLE PRODUCE, INC., which was a
legal cause of damage to John Adams?
YES NO
If your answer to question 1 is NO, your verdict is for defendant, and
you should not proceed further except to date and sign this verdict form and
return it to the courtroom. If your answer to question 1 is YES, please answer
question 2.
2. State the percentage of any negligence, which was a legal cause of
damage to John Adams, that you chargeapportion to:
- 77 -
Tom Jones (Perishable Produce
Inc.’s driver) %
Frank Foot (Marvel Transport
Co. driver) %
Total must be 100%
Please answer question 3.
3. Did MARVEL TRANSPORT CO. payment of $75,000.00 to
Adams exceed a reasonable settlement under all of the circumstances?
YES NO
If your answer to question 3 is NO, do not proceed further except to
date and sign this verdict form and return it to the courtroom. If your answer
to question 3 is YES, please answer question 4.
4. What would have been a reasonable settlement, under all of the
circumstances, for MARVEL TRANSPORT COMPANY to pay Adams?
$
SO SAY WE ALL, this day of ,2
FOREPERSON
MODEL INSTRUCTION NO. 6
Claimant suing three alleged joint tortfeasors; comparative negligence in
issue; contribution shares to be determined in action
Facts of the hypothetical case:
Mary Smith was injured while driving her car, which was involved in a four-
car pile-up. She filed suit against the drivers of the other vehicles—Ron Rowe,
Sally Jones and Tom Torpor—alleging that their combined negligence caused the
pile-up and her injuries. All defendants have asserted that the negligence of Smith
contributed to her injuries. The defendants filed cross-claims raising the issue of
- 78 -
contribution. The court has determined that a single verdict can conveniently
determine the contribution shares of the defendants found to be liable to Smith.
The court’s instruction:
The committee assumes that the court will give these instructions at the
beginning of the case and that these instructions will be given again before final
argument. When given at the beginning of the case, 202.1 will be used in lieu of
401.1 and these instructions will be followed by the applicable portions of 202.2
through 202.5. See Model Instruction No. 1 for a full illustration of an instruction
at the beginning of the case.
[401.1] Members of the jury, you have now heard and received all of the
evidence in this case. I am now going to tell you about the rules of law that you
must use in reaching your verdict. You will recall at the beginning of the case
I told you that if, at the end of the case I decided that different law applies, I
would tell you so. These instructions are, however, the same as what I gave you
at the beginning and it is these rules of law that you must now follow. When I
finish telling you about the rules of law, the attorneys will present their final
arguments and you will then retire to decide your verdict.
[401.2] The claims and defenses in this case are as follows. Mary Smith
claims that Ron Rowe and/or Sally Jones and/or Tom Torpor were negligent
in the operation of their vehicles, which caused her harm.
Ron Rowe, Sally Jones and Tom Torpor each deny that claim and they
each also claim that Mary Smith was herself negligent in the operation of her
vehicle, which caused her harm.
The parties must prove their claims by the greater weight of the
evidence. I will now define some of the terms you will use in deciding this case.
[401.3] “Greater weight of the evidence” means the more persuasive and
convincing force and effect of the entire evidence in the case.
[401.4] Negligence is the failure to use reasonable care, which is the care
that a reasonably careful person would use under like circumstances.
Negligence is doing something that a reasonably careful person would not do
under like circumstances or failing to do something that a reasonably careful
person would do under like circumstances.
- 79 -
[401.12(a)] Negligence is a legal cause of loss, injury, or damage if it
directly and in natural and continuous sequence produces or contributes
substantially to producing such loss, injury, or damage, so that it can
reasonably be said that, but for the negligence, the loss, injury, or damage
would not have occurred.
[401.12(b)] In order to be regarded as a legal cause of loss, injury, or
damage negligence need not be the only cause. Negligence may be a legal
cause of loss, injury, or damage even though it operates in combination with
the act of another or some other cause if the negligence contributes
substantially to producing such loss, injury, or damage.
[401.18(b)] The issues you must decide on Mary Smith’s claim against
Ron Rowe and/or Sally Jones and/or Tom Torpor are whether any one or more
of those defendants were negligent in the operation of the vehicles they were
driving; and, if so, whether such negligence was a legal cause of loss, injury, or
damage to Mary Smith.
[401.21] If the greater weight of the evidence does not support the claim
of Mary Smith against a particular defendant, then your verdict should be for
that defendant.
[401.22] If, however, the greater weight of the evidence supports Mary
Smith’s claim against one or more of the defendants, then you shall consider
the defense raised by the defendants.
[401.22(a)] On that defense, the issue for you to decide is whether Mary
Smith was herself negligent in the operation of her vehicle and, if so, whether
that negligence was a contributing legal cause of injury or damage to Mary
Smith.
[401.23] If the greater weight of the evidence does not support the
defense of the defendants and the greater weight of the evidence supports
Mary Smith’s claim against one or more of the defendants, then your verdict
should be for Mary Smith against those particular defendants and you should
then decide and write on the verdict form what percentage of the total
negligence of those defendants was caused byyou apportion to each defendant.
If, however, the greater weight of the evidence shows that both Mary
Smith and one or more of the defendants were negligent and that the
negligence of each contributed as a legal cause of loss, injury, or damage
- 80 -
sustained by Mary Smith, you should decide and write on the verdict form
what percentage of the total negligence of all parties to this action was caused
byyou apportion to each of them.
[501.1(b)] If your verdict is for the defendants you will not consider the
matter of damages. But if the greater weight of the evidence supports Mary
Smith’s claim against one or more of the defendants, you should determine and
write on the verdict form, in dollars, the total amount of loss, injury, or
damage, which the greater weight of the evidence shows will fairly and
adequately compensate her for her loss, injury or damage, including any
damages that Mary Smith is reasonably certain to incur or experience in the
future. You shall consider the following elements:
[501.2(a)] Any bodily injury sustained, any resulting pain and suffering,
disability or physical impairment, disfigurement, mental anguish, incon-
venience or loss of capacity for the enjoyment of life experienced in the past,
or to be experienced in the future. There is no exact standard for measuring
such damage. The amount should be fair and just, in the light of the evidence.
[501.2(b)] The reasonable expense of hospitalization and medical care
and treatment necessarily or reasonably obtained in the past, or to be so
obtained in the future.
[501.2(c)] Any earnings lost in the past, and any loss of ability to earn
money in the future.
[501.2(h)] Any damage to Mary Smith’s automobile. The measure of
such damage is the reasonable cost of repair, if it was practicable to repair the
automobile, with due allowance for any difference between its value
immediately before the collision and its value after repair. You shall also take
into consideration any loss Mary Smith sustained for towing or storage
charges and by being deprived of the use of her automobile during the period
reasonably required for its repair.
[501.4] In determining the total amount of damages, you should not
make any reduction because of the negligence, if any, of Mary Smith. The
court will enter a judgment based on your verdict and, if you find that Mary
Smith was negligent in any degree, the court, in entering judgment, will
reduce the total amount of damages by the percentage of negligence which
you find was caused byyou apportion to Mary Smith.
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[501.6] If the greater weight of the evidence shows that Mary Smith has
been permanently injured, you may consider her life expectancy. The
mortality tables received in evidence may be considered in determining how
long Mary Smith may be expected to live. Mortality tables are not binding on
you, but may be considered together with other evidence in the case bearing
on Mary Smith’s health, age and physical condition, before and after the
injury, in determining the probable length of her life.
[501.7] Any amount of damages which you allow for future medical
expenses or loss of ability to earn money in the future should be reduced to its
present money value, and only the present money value of these future
economic damages should be included in your verdict. The present money
value of future economic damages is the sum of money needed now which,
together with what that sum will earn in the future, will compensate Mary
Smith for these losses as they are actually experienced in future years.
[501.9] Even if you determine that more than one of the defendants were
negligent, you should determine Mary Smith’s damages in a single total
amount, and write that amount, in dollars, on the verdict form.
[601.1] In deciding this case, it is your duty as jurors to decide the
issues, and only those issues, that I submit for your determination and to
answer certain questions I ask you to answer on a special form, called a
verdict form. You must come to an agreement about what your answers will
be. Your agreed-upon answers to my questions are called your jury verdict.
In reaching your verdict, you must think about and weigh the testimony
and any documents, photographs, or other material that has been received in
evidence. You may also consider any facts that were admitted or agreed to by
the lawyers. Your job is to determine what the facts are. You may use reason
and common sense to reach conclusions. You may draw reasonable inferences
from the evidence. But you should not guess about things that were not
covered here. And, you must always apply the law as I have explained it to
you.
[601.2(a)] Let me speak briefly about witnesses. In evaluating the
believability of any witness and the weight you will give the testimony of any
witness, you may properly consider the demeanor of the witness while
testifying; the frankness or lack of frankness of the witness; the intelligence of
the witness; any interest the witness may have in the outcome of the case; the
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means and opportunity the witness had to know the facts about which the
witness testified; the ability of the witness to remember the matters about
which the witness testified; and the reasonableness of the testimony of the
witness, considered in the light of all the evidence in the case and in the light
of your own experience and common sense.
[601.2(b)] Some of the testimony before you was in the form of opinions
about certain technical subjects.
You may accept such opinion testimony, reject it, or give it the weight
you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion
expressed, and all the other evidence in the case.
[601.5] That is the law you must follow in deciding this case. The
attorneys for the parties will now present their final arguments. When they
are through, I will have a few final instructions about your deliberations.
Following closing arguments, the final instructions are given:
[700] Members of the jury, you have now heard all the evidence, my
instructions on the law that you must apply in reaching your verdict and the
closing arguments of the attorneys. You will shortly retire to the jury room to
decide this case. Before you do so, I have a few last instructions for you.
You will have in the jury room all of the evidence that was received
during the trial. In reaching your decision, do not do any research on your
own or as a group. Do not use dictionaries, the Internet, or other reference
materials. Do not investigate the case or conduct any experiments. Do not
contact anyone to assist you, such as a family accountant, doctor, or lawyer.
Do not visit or view the scene of any event involved in this case. If you happen
to pass by the scene, do not stop or investigate. All jurors must see or hear the
same evidence at the same time. Do not read, listen to, or watch any news
accounts of this trial.
Any notes you have taken during the trial may be taken to the jury
room for use during your discussions. Your notes are simply an aid to your
own memory, and neither your notes nor those of any other juror are binding
or conclusive. Your notes are not a substitute for your own memory or that of
other jurors. Instead, your verdict must result from the collective memory
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and judgment of all jurors based on the evidence and testimony presented
during the trial.
At the conclusion of the trial, the bailiff will collect all of your notes, and
immediately destroy themwhich will be immediately destroyed. No one will
ever read your notes.
In reaching your verdict, do not let bias, sympathy, prejudice, public
opinion or any other sentiment for or against any party to influence your
decision. Your verdict must be based on the evidence that has been received
and the law on which I have instructed you.
Reaching a verdict is exclusively your job. I cannot participate in that
decision in any way and you should not guess what I think your verdict should
be from something I may have said or done. You should not think that I
prefer one verdict over another. Therefore, in reaching your verdict, you
should not consider anything that I have said or done, except for my specific
instructions to you.
Pay careful attention to all the instructions that I gave you for that is the
law that you must follow. You will have a copy of my instructions with you
when you go to the jury room to deliberate. All the instructions are important
and you must consider all of them together. There are no other laws that
apply to this case and even if you do not agree with these laws, you must use
them in reaching your decision in this case.
When you go to the jury room, the first thing you should do is choose a
presiding juror. The presiding juror should see to it that your discussions are
orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself, but
only after you have considered the evidence with the other members of the
jury. Feel free to change your mind if you are convinced that your position
should be different. You should all try to agree. But do not give up your
honest beliefs just because the others think differently. Keep an open mind so
that you and your fellow jurors can easily share ideas about the case.
I will give you a verdict form with questions you must answer. I have
already instructed you on the law that you are to use in answering these
questions. You must follow my instructions and the form carefully. You must
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consider each question separately. Please answer the questions in the order
they appear. After you answer a question, the form tells you what to do next. I
will now read the form to you: (read form of verdict)
Your verdict must be unanimous, that is, your verdict must be agreed to
by each of you. When you are finished filling out the form, your presiding
juror must write the date and sign it at the bottom. Return the form to the
bailiff.
If any of you need to communicate with me for any reason, write me a
note and give it to the bailiff. In your note, do not disclose any vote or split or
the reason for the communication.
You may now retire to decide your verdict.
Special Verdict Form
VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of any of the defendants, which
was a legal cause of damage to Plaintiff, Mary Smith?
RON ROWE YES NO
SALLY JONES YES NO
TOM TORPOR YES NO
If your answer to question 1 is NO as to all defendants, your verdict is
for the defendants, and you should not proceed further except to date and sign
this verdict form and return it to the courtroom. If your answer to question 1
is YES as to any of the defendants, please answer question 2.
2. Was there negligence on the part of Plaintiff, MARY SMITH,
which was a legal cause of her damage?
YES NO
Please answer question 3.
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3. State the percentage of any negligence, which was a legal cause of
damage to Plaintiff, Mary Smith, that you chargeapportion to:
Ron Rowe %
Sally Jones %
Tom Torpor %
Mary Smith %
Total must be 100%
Your answers to question 3 must total 100%, and should include a zero
for any person you found not negligent in answer to questions 1 and 2.
In determining the amount of any damages, do not make any reduction
because of the negligence, if any, of Plaintiff, MARY SMITH. If you find
Plaintiff, MARY SMITH, was negligent in any degree, the court, in entering
judgment, will reduce MARY SMITH’S total amount of damages (100%) by
the percentage of negligence that you find was caused byapportion to MARY
SMITH.
Please answer questions 4 and 5.
4. What is the total amount of MARY
SMITH’S damages for lost earnings in the past,
loss of earning capacity in the future, medical
expenses incurred in the past, medical expenses
to be incurred in the future? $
5. What is the total amount of MARY
SMITH’S damages for pain and suffering, disability,
physical impairment, disfigurement, mental anguish,
inconvenience, aggravation of a disease or physical
defect, and loss of capacity for the enjoyment of life
sustained in the past and to be sustained in the future? $
TOTAL DAMAGES OF MARY SMITH
(add lines 4 and 5) $
SO SAY WE ALL, this day of ,2
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FOREPERSON
FORM 1. MODEL FORM OF VERDICT FOR GENERAL NEGLIGENCE
WITH APPORTIONMENT OF FAULT
VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of (defendant) which was a legal
cause of [loss] [injury] [or] [damage] to (claimant) (decedent)?
YES NO
If your answer to question 1 is NO, your verdict is for defendant, and
you should not proceed further except to date and sign this verdict form and
return it to the courtroom. If your answer to question 1 is YES, please answer
question 2.
2. Was there negligence on the part of (claimant) (decedent) which
was a legal cause of [his] [her] [loss] [injury] [or] [damage]?
YES NO
Please answer question 3.
3. Was there [negligence] [(specify other type of conduct)] on the part
of (identify additional person or entity) which was a contributing legal cause of
[loss] [injury] [or] [damage] to (claimant) (decedent)?
YES NO
This question should be repeated, and the question numbers adjusted
accordingly, for each additional person or entity as to which the evidence is
sufficient to permit the jury to apportion fault.
Please answer question 4.
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4. State the percentage of any negligence [or fault], which was a legal
cause of [loss] [injury] [or] [damage] to (claimant) (decedent) that you
chargeapportion to:
(defendant) __________%
(identify additional
person or entity) __________%
(claimant) __________%
Total must be 100%
(Note: For any response of “NO” to question 1, 2, or 3, place a zero as to
that person [or entity] in answering question 4.)
If the evidence is sufficient to permit the jury to apportion fault to more than
one additional person or entity, a separate line should be added for each
such additional person or entity.
In determining the amount of damages, do not make any reduction
because of the negligence, if any, of (claimant) (decedent) or the [negligence]
[(specify other type of conduct)], if any, of (identify additional person(s) or
entit(y)(ies)). If you find that (claimant) (decedent) or (identify additional
person(s) or entit(y)(ies)) [was] [were] negligent [or at fault], the court in
entering judgment will make an appropriate reduction in the damages
awarded.
Please answer question 5.
Select the appropriate damage questions from forms 2(a) or (b).
SO SAY WE ALL, this ______ day of _______________, 2______.
FOREPERSON
NOTE ON USE FOR FORM 1
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The verdict form should list all persons or entities among whom the jury
may apportion fault. This will permit the trial court to allocate damages, determine
setoffs, if appropriate, and facilitate appellate review.
FORM 5(c). MODEL FORM OF VERDICT FOR EMERGENCY MEDICAL
TREATMENT; ISSUES AS TO BOTH APPLICABILITY OF F.S.
768.13(2)(b) AND COMPARATIVE NEGLIGENCE
VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of (defendant hospital, hospital
employee, physician) which was a legal cause of [loss] [injury] [or] [damage] to
(claimant) (decedent)?
YES NO
If your answer to question 1 is NO, your verdict is for defendant, and
you should not proceed further except to date and sign this verdict form and
return it to the courtroom. If your answer to question 1 is YES, please answer
question 2.
2. Did (defendant hospital, hospital employee, physician) render [care]
[treatment] to (claimant) (decedent) under emergency circumstances?
YES NO
If your answer to question 2 is YES, please answer question 3. If your
answer to question 2 is NO, skip question 3 and answer question 4.
3. Was there reckless disregard on the part of (defendant hospital,
hospital employee, physician) which was a legal cause of [loss] [injury] [or]
[damage] to (claimant) (decedent)?
YES NO
Please answer question 4.
4. Was there negligence on the part of (claimant) (decedent) which
was a legal cause of [his] [her] [loss] [injury] [or] [damage]?
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YES NO
If your answer to question 4 is YES, please answer question 5. If your
answer to question 4 is NO, skip question 5 and answer question 6.
5. State the percentage of any negligence, which was a legal cause of
[loss] [injury] [or] [damage] to (claimant) (decedent), that you chargeapportion
to:
(defendant hospital, hospital
employee, physician) __________%
(claimant) (decedent) __________%
Total must be 100%
Please answer question 6.
6. What is the total amount (100%) of any damages sustained by
(claimant) (decedent) and caused by the incident in question?
Total damages of (claimant) (decedent) $
Refer to Forms 2(a) and (b) for itemized damage interrogatories.
In determining the total amount of damages, do not make any reduction
because of the negligence, if any, of (claimant) (decedent). If you have found
(claimant) (decedent) negligent in any degree, the court in entering judgment
will reduce (claimant’s) (decedent’s) total amount of damages (100%) by the
percentage of negligence which you found was causedapportion by (claimant)
(decedent).
SO SAY WE ALL, this day of ,2
FOREPERSON
NOTE ON USE FOR FORM 5(c)
Pending further developments in the law, the committee reserves the issue of
whether comparative negligence is a defense when the reckless disregard standard
is in effect. However, when issues as to both the applicability of the statute and
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comparative negligence are present, and the court decides that comparative
negligence is a defense to a claim based upon the statute, this verdict form should
be modified accordingly.
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