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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.