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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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