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Indiana Judges Association: Plain English? Revisions plain common sense

David J. Dreyer
September 1, 2010
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IJA-Dreyer-David“The Indiana Model Civil Jury Instructions, written in plain English, are now available. … The new instructions were prepared by the Civil Instructions Committee of the Indiana Judges Association.”

This hot news release from the Indiana Judicial Center is historic. First, it clearly acknowledges the old Instructions were written in some other form of English, if not some other language altogether. Second, it shows that we judges are all about helping lay people understand the law, especially since “Judge Judy” started airing. But third, it marks a significant, and badly needed, departure from tradition.

Not all such departures are bad, as new federal Judges Tanya Walton Pratt and Jane Magnus-Stinson might attest. Just as time and experience compel growing diversity in our justice system, judges are looking ahead to make law more accessible and understandable.

The committee chair, Lake Superior Judge John R. Pera, cited the committee’s “sense of purpose” to revise instructions into language more commonly used by the average juror and make the system more efficient. He explained, “We want everyone to remember who the audience is.”

The committee, with the able support of staffer Julie McDonald, also relied upon the expertise of professor Elizabeth Francis from the University of Nevada Reno. She told me if instructions are more “functionally clear, they will be better retained by jurors.” There are upcoming seminars to help explain this brave new plain English world.

If plain English is the solution, what is the problem?

Well, here’s an example: No normal person ever describes an event by using the term “proximate cause,” except lawyers who, as we all know, are recovering law students. So Judge Pera and his Civil Instructions Committee produced a new instruction – without using the words “proximate cause.”

What? How can this possibly work when we have used “proximate cause” since Alexander the Great defeated the Persians? Bryan A. Garner, the well-known editor of Black’s Law Dictionary, head of LawProse Inc., and plain English expert, finds this extraordinary.

“I have been revising jury instructions for 20 years, and I have never been able convince anyone to remove ‘proximate cause,’” said Garner.

Francis also lauded Indiana judges: “They honor their jurors as members of the court.”

Although plain English instructions are new to Indiana, Garner traces such efforts as far back as Timothy Walker’s 1850 “Introduction to American Law. Garner’s own 1987 book, “A Dictionary of Modern Legal Usage,” is the manual for the contemporary plain English movement.

“When you make it easier for jurors,” said Garner, “you make it easier for lawyers as well.”

So we now have the following: “A person’s conduct is legally responsible for causing an injury if: (1) the injury would not have occurred without the conduct, and (2) the injury was a natural, probable, and foreseeable result of the conduct. This is called a “responsible cause.”

Plain and simple. No more “proximate cause” because it is not a phrase that real people really use to talk about anything anyway. In fact, it sounds more like “approximate,” or like a close cause, but not the real cause. The committee noted in its comments to the new Instructions:

Prosser and Keeton say that proximate cause is “is an unfortunate word, which places entirely the wrong emphasis on the factor of physical or mechanical closeness.” (“The word ‘proximate’ is a legacy of Lord Chancellor Bacon, who in his time committed other sins.”) The committee has determined that use of a term so likely to be misunderstood is against the policy behind clear jury instructions.

What about “preponderance of the evidence”? I once heard a juror mispronounce this term as “preposterousness of the evidence.” (In some cases, this is not a mispronunciation). The committee wisely found this archaic and uncommon. Thus, there are now new instructions about burden of proof upon the issues, for example: “Plaintiff must prove her claims by the greater weight of the evidence … Evidence is of the greater weight if it convinces you most strongly of its truthfulness. In other words, it is evidence that convinces you that a fact is more probably true than not true …

See, no more “preponderance of the evidence.” Who knows what a “preponderance” is, anyway? More importantly, lay Hoosiers can much more easily understand “greater weight,” especially around State Fair season.

Ultimately, I hope this also leads to a Plain Common Sense Movement encompassing all aspects of legal practice – like a rule prohibiting the statement “It is what it is, Judge.” (OK, but why can’t they tell me what it is?)

It may take some time for these new plain English instructions to take root. But as they grow, the public will begin to appreciate the worthy work of lawyers and judges about what is most important in our profession – bringing the law to real people, and so real justice.•

__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School, and a former board member of the Indiana Judges Association. The opinions expressed in this column are those of the author.

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  1. Uh oh, someone is really going to get their panti ... uh, um ... I mean get upset now: http://www.theguardian.com/us-news/2015/mar/31/arkansas-passes-indiana-style-religious-freedom-bill

  2. Bryan, stop insulting the Swedes by comparing them to the American oligarchs. Otherwise your point is well taken.

  3. Sociologist of religion Peter Berger once said that the US is a “nation of Indians ruled by Swedes.” He meant an irreligious elite ruling a religious people, as that Sweden is the world’s least religious country and India the most religious. The idea is that American social elites tend to be much less religious than just about everyone else in the country. If this is true, it helps explain the controversy raking Indiana over Hollywood, San Fran, NYC, academia and downtown Indy hot coals. Nevermind logic, nevermind it is just the 1993 fed bill did, forget the Founders, abandon of historic dedication to religious liberty. The Swedes rule. You cannot argue with elitists. They have the power, they will use the power, sit down and shut up or feel the power. I know firsthand, having been dealt blows from the elite's high and mighty hands often as a mere religious plebe.

  4. I need helping gaining custody of my 5 and 1 year old from my alcoholic girlfriend. This should be an easy case for any lawyer to win... I've just never had the courage to take her that far. She has a record of public intox and other things. She has no job and no where to live othe than with me. But after 5 years of trying to help her with her bad habit, she has put our kids in danger by driving after drinking with them... She got detained yesterday and the police chief released my kids to me from the police station. I live paycheck to paycheck and Im under alot of stress dealing with this situation. Can anyone please help?

  5. The more a state tries to force people to associate, who don't like each other and simply want to lead separate lives, the more that state invalidates itself....... This conflict has shown clearly that the advocates of "tolerance" are themselves intolerant, the advocates of "diversity" intend to inflict themselves on an unwilling majority by force if necessary, until that people complies and relents and allows itself to be made homogenous with the politically correct preferences of the diversity-lobbies. Let's clearly understand, this is force versus force and democracy has nothing to do with this. Democracy is a false god in the first place, even if it is a valid ideal for politics, but it is becoming ever more just an empty slogan that just suckers a bunch of cattle into paying their taxes and volunteering for stupid wars.

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