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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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