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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. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  3. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  4. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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