Standard Civil Jury Charges
INTRODUCTION BY JUDGE DURWOOD CONQUE:
I have adopted the practice of instructing the jury in a civil case at the beginning of the trial as well as at the end. The lawyers who have tried cases in my court since I began this practice have found that it is much better than the traditional method of charging the jury only at the end.
Just before opening statements, I instruct the jury on their function and duties, as well as the duties of the attorneys and the court. They are told about how evidence is presented, the order of trial, evaluation of witnesses, expert testimony, how objections will be handled, stipulations and so on. I also explain the theory of the case and read the applicable law.
At the end of the trial, I repeat the applicable law of the case and any other instructions that I or the attorneys feel should be repeated. I also instruct them on damages and how they are to conduct their deliberations.
This method is very effective for relaxing the jury and eases their fear of not knowing what is expected of them. With an understanding of what to look for in a trial, they can settle down into listening to the evidence.
The following are my standard jury instructions in a personal injury case given at the beginning
of the trial.
After closing arguments or summation, I repeat the instructions on Burden of Proof, Theory of
Recovery ( Duty/Risk or other), Cause in Fact and the Kinds of Evidence. Then I add instructions
as appropriate regarding:
I also have some standard instructions for specialized cases, and I add to these as the need arises.
INTRODUCTION AT START OF TRIAL:
DUTY OF JURY
As we begin this trial, you need to know and clearly understand your duty as jurors. You will be the judges of the facts, and you will decide the outcome of this lawsuit. Your duty is to listen carefully to the witnesses and to evaluate their testimony. You must sort out all of the evidence in this case and determine which facts are probably true. You are searching for the truth so that, when the trial is over, you can return a true and correct verdict. You must pay close attention to the witnesses and the evidence presented during the trial. You are permitted to take notes, but they must be kept confidential during the trial. They will be collected and kept by the court during each recess and returned to you when the recess is over. They will be destroyed by the court after you have returned a verdict. You are not permitted to ask questions of any witness during the trial.
You must keep an open mind throughout the trial, and not make up your mind until the very end,
and only after you have exchanged views with your fellow jurors. In order for you to keep an
open mind and remain impartial, it is important that you avoid any contact with the attorneys,
parties or witnesses involved in this trial. You must not discuss the case among yourselves or
with anyone else while the trial is going on. You must not permit anyone to talk about the case in
your presence, and you must remove yourself immediately from any situation where the case is
being discussed.
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You will reach your verdict based on the evidence you hear in this case. The only evidence you
may consider is what is presented to you in this courtroom. There are two kinds of evidence -
direct evidence and circumstantial evidence. Direct evidence tends to establish a fact all on its
own, such as the testimony of an eye witness. Circumstantial evidence does not establish a fact
all on its own, but may point to a fact. An example of circumstantial evidence is wet ground,
which may be evidence that it has been raining, even you did not actually see the rain. You
should consider all of the evidence presented to you, both direct and circumstantial.
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Normally, witnesses must testify only from first-hand knowledge, that is personal observation,
and is not permitted to give an opinion about any part of the case. One exception to this rule is
expert testimony. If a witness qualifies as an expert in a particular field, then the witness is
permitted to express an opinion, so long as the opinion is on a matter within the witness field of
expertise. The witness must be able to back the opinion up with technical data, experience or
other information normally relied on by people in that field. You should consider each expert
opinion given in this case, and give it the weight you think it deserves. If you decide that the
opinion of an expert witness is not based on sufficient information, that the reasons given in
support of the opinion are not sound, or that it is outweighed by other evidence, you have the
right to give it little or no weight, or to disregard it entirely. The purpose of expert testimony is to
help you to understand highly technical matters that may have a bearing on the case, and about
which your knowledge may be limited. It is designed to assist you in determing the facts and
arriving at the truth, but it should not replace your own judgment. Your decision should be based
on all of the evidence in the case, not just the expert testimony.
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MEDICAL TESTIMONY
Doctors and other health care providers normally testify as expert witnesses and give their
opinion about the condition of a patient. The opinion may be based on objective symptoms,
subjective symptoms or a combination. Objective symptoms are those which can be seen in
examinations, tests and treatment. Subjective symptoms are those which cannot be observed but
are based on statements made by the patient to the doctor or other health care provider. To the
extent that any opinion is based on statements made by the patient, you are entitled to consider
the truthfulness of the patients statements in deciding how much weight to give to the medical opinion.
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TREATING PHYSICIAN
Most witnesses will come to the courtroom to testify, but the law does permit testimony to be presented by deposition, which is a series of questions and answers recorded under oath, but before the trial. Sometimes a deposition is recorded on videotape.
Depositions are commonly used if the witness is not able to come to trial, or if the witness is a
physician who has patients or surgery scheduled on the day of trial. You should evaluate the
testimony of witnesses presented by deposition in the same way that you evaluate those who
testify in person.
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It will be your duty to decide first whether the defendant(s) have any liability at all in this case. If you decide that the defendant(s) are liable in damages, then and only then, will you consider and determine the amount of damages actually sustained.
It is my duty to instruct you as to all of the law that may be applicable in this case, depending on
how you decide certain issues. This includes instructions on how damages are to be computed if
you decide to award damages. I do not intend by these instructions, however, to express any
opinion at all as to whether damages should be awarded, or if
so , the amount that should be
awarded. These are matters that must be decided only by you.
You must not allow sympathy or personal preference to influence your verdict on either the question of liability or the amount of damages. You must not allow yourself to be influenced by the status of the parties in this case. All parties are entitled to equal justice in our courts, rich or poor, individuals or corporations.
Damage awards are normally not subject to federal or state income tax, except for the portion that may be given for loss of income. The fact that an award or part of it is tax free maybe considered by you in deciding the amount.
You may also take into consideration the diminishing purchasing power of the dollar in recent years when you compute an award.
Any award you may decide to make must not include any amount for attorney's fees, court costs, or interest. The court will consider these items.
If you find in favor of the plaintiff, you must consider what special damages have been proved by
the weight of the evidence. Special damages are those which can be documented through invoices
or calculated with mathematical certainty. The exact amount of special damages must be proved.
They may include past and future medical expenses, past and future lost earnings or income, and
any other damages supported by invoices or mathematical calculations.
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If you find for the plaintiff and award special damages, such as medical expenses, then you must
consider and award general damages. General damages cannot be documented exactly or
calculated mathematically. They include past and future pain and suffering, both physical and
mental; past and future disability; disfigurement; and loss of enjoyment of life. While it is not
possible to establish the exact amount of general damages, the plaintiff must still prove by the
weight of the evidence that such damages were actually sustained or will be sustained in the
future. You must not award damages that are merely speculative, those that you think might have
been suffered or might be suffered in the future. Since the amount of these damages cannot be
supported by exact evidence, you must determine the award for such damages by applying your
experiences in life, your sound discretion and your common sense. Remember, if you award an
amount for special damages, you must award general damages as well.
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Louisiana law in cases like this one does not permit any award of punitive damage. No award can
be made as a punishment against the defendant even it you might feel that you would want to
punish a defendant. Any award made in this case must be based only on what you feel is fair and
just compensation to the plaintiff for the damages claimed and proved.
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If you determine that the plaintiff is entitled to an award of damages for loss of future earnings,
you must determine the plaintiffs loss of earning capacity. Earning capacity is not necessarily
determined by actual lost wages. It can be the loss of what the plaintiff could have earned despite
the fact that he never could, or never saw fit to, take advantage of that capacity. You are not
absolutely bound by the opinion of any expert. However, in this case, the only evidence on the
calculation of the value of lost wages was the testimony of an actuarial expert, or economist. So,
if you determine that the plaintiff is entitled to an award for loss of future earnings, you must give
substantial consideration to the testimony presented, if you find that it was based on sufficient
information and supported by good reasons. The amount calculated to cover a future loss of
earnings is more valuable to the plaintiff if he received the entire amount today, than if he
received the same amount over the years in the future. So, if you decide to award the plaintiff an
amount for lost future earnings, it must be an amount that is discounted to present value by
considering what return would be realized on a relatively risk free investment program.
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The plaintiffs in this case seek an award to compensate them for loss of consortium. Loss of
consortium is damage sustained as the result of injury to a loved one. Loss of consortium includes
damage for any negative effect the injury has on the relationship between family members,
including love, affection, mutual comfort, companionship and shared enjoyment of life. For a
husband or wife, it also includes loss of sexual enjoyment and physical affection. Like any other
element of damages, loss of consortium must be proved by a preponderance of the evidence.
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If you find from the evidence that the plaintiff was suffering from any preexisting condition, then
you may consider whether this condition was aggravated or activated by the accident. The rule
that you must follow is that a party is entitled to recover damages that arise when the accident
causes the preexisting condition to flare up or become more serious. In assessing damages when
there is a preexisting condition, you may only consider damages directly caused by the accident,
and the defendant is not responsible for damages caused by ailments or injuries that existed
before the accident.
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When I release you in a few moments to go to the jury room, your first order of business will be to elect a foreperson who will be responsible for presiding over your deliberations so that your discussions and voting will be conducted in a fair and orderly manner.
( At this time the alternate jurors are released from duty.)
As the remainder of you begin your deliberations and work toward reaching a fair and impartial verdict in this case, you will rely on your memories for the most part. No testimony of any witness can be repeated or read to you. You may use any notes that you have taken to refresh your memory. During your deliberations, you have the right to have with you any object or document received in evidence in this case. You will also be provided with a copy of all the instructions that I have given you during this trial.
You will be given a Verdict Form that has been prepared for this case. On it are questions that you must discuss, vote on and answer. There are instructions as well, and these should be fully understood before you begin your discussion. The foreperson should read aloud the entire Verdict Form to you and take responsibility for making sure that everyone understands it the same way. If you have any questions about the Verdict Form, or about how your deliberations should be conducted, feel free to have the foreperson write the question out, date and sign it, and knock on the door of the jury room. The bailiff will retrieve the question, and I will consider it.
Follow the same procedure if you would like for me to repeat any of the instructions that I have given you.
In order to answer any question on the Verdict Form, nine (9) of you must agree on the answer. You cannot answer any question or reach any verdict unless nine (9) of you agree.
You will soon begin your deliberations. As you do so, consult with one another. Consider each other's views with an open mind and discuss the evidence and law in this case so that you can, together, reach a just verdict.
The verdict that you return should completely satisfy your mind and your conscience that you have, to the very best of your ability and in keeping with the oath that you have taken, interpreted the facts and applied the law truly, correctly and impartially. Your sworn duty is to seek the truth and to reach a verdict that is consistent with the truth.
Remember that you are not champions or advocates for either side in this case. You are jurors, and you are responsible to this court and to your community for reaching a verdict that is not based on anything whatsoever except the evidence and the law in this case.
Don't vote until you have discussed the case thoroughly. Open your mind to the views and opinions of your fellow jurors and share your thoughts with them. When you have considered all of the evidence, these instructions on the law, and the opinions of your fellow jurors, then vote your conscience.
You will now go to the jury room where you will remain until you have reached a verdict in this case.
If your verdict is for the plaintiff, you are instructed not to determine the amount of the award by
using a quotient verdict, which is one where you each write down a figure to be added together
and divided by twelve to arrive at an average or quotient to use as the amount of your award. A
verdict calculated in this manner is invalid.
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MEDICAL MAL.; NEGL.; SPECIALIST
The burden of proof in a medical malpractice case is set out in Louisiana law by statute. ( LSA
R.S. 9:2794 ). The plaintiff in such a case must prove three things by a preponderance of the
evidence to recover: (1) The degree of knowledge or skill that doctors, who practice in the same
medical specialty as the defendant doctor(s), possess or ordinarily exercise in the treatment of
patients; (2) That the defendant doctor(s) lacked this degree of knowledge or skill, or failed to use
reasonable care and diligence, along with best judgment, in the application of this knowledge or
skill; (3) That because of this lack of knowledge or skill, or the failure to exercise this degree of
care, the plaintiff(s) suffered injuries that they would not otherwise have incurred.
An injury
alone does not raise any presumption that a doctor has been negligent. The plaintiff must prove
that a doctor was negligent by a preponderance of the evidence and that the doctor's negligence
caused the injury. We define negligence or fault as the failure to use care required of a person
under a given set of circumstances. In determining whether a doctor acted negligently, you must
consider the standard of care applicable to a doctor who is a specialist, in
this case, a ________________ surgeon. One who holds himself
out to be a specialist owes a special duty to his patients. That duty is to make sure that he has the
learning and the skill that other doctors practicing in the same special field of medicine ordinarily
possess, and that he uses reasonable care and his best judgment in treating his patients.
The law does
not require a specialist in a field of medicine to possess the highest degree of skill or to use the
highest degree of care possible. The law does not require him to insure good results or to
guarantee that no injury will occur. The law does not require absolute precision in medical
diagnosis or treatment, and in cases where the doctor uses his professional judgment, his
treatment is evaluated according to whether he was acting reasonably under the circumstances
existing at the time, not according to the result, which we can only see later in time. A doctor
faced with several reasonable methods of treating a patient is not negligent under the law if he
does not choose a method that may later turn out to be wiser or better. If a complication arises,
and injury or harm results, the law does not require that the doctor show what caused it, nor can
he be found negligent merely because he chose an alternative method of treatment, which later
proved to cause a complication, as long as he exercised the required care, skill and judgment in
selecting and following the method that he chose. The degree of knowledge and skill, and the
kind of judgment, required of doctors practicing in a particular specialty, are highly technical
matters not ordinarily known by lay persons serving on a jury. The law requires that you rely on
expert testimony to learn about what kind of care, skill and judgment are needed in a particular
specialty.
You may not, as jurors, set up your own standards for doctors. You must allow
yourselves to be guided by the expert testimony to determine whether the defendant(s) acted
reasonably under the circumstances, and whether (t)he(y) exercised the degree of knowledge and
skill exercised by other specialists in the same field. You must still determine what weight to give
to each expert's testimony and decide what the preponderance of this evidence shows, but you
may not substitute your own opinions in place of all the experts.
Louisiana law ( LSA R.S.
40:1299.47 ) requires that all claims against doctors must first be submitted to a Medical Review
Panel. The panel consists of a non-voting attorney chairperson and three (3) physicians from the
same specialty as the defendant. Each side selects a physician to the panel or either party may
request that the attorney chairperson select a physician to serve on their behalf, and the two select
a third physician to complete the panel. Both plaintiffs and defendants present their evidence to
the panel for its consideration. After doing so, the panel renders a decision as to whether or not
the doctor was negligent; that is, whether he breached the standard of care required of him in
treating the patient. The decision of the panel may be introduced at the trial and it constitutes
expert opinion evidence of the three doctors who served on the panel, which determined whether
the defendant doctor met the appropriate standard of care required by Louisiana law. This
decision is not binding on you as jurors, but you should consider this opinion as expert testimony.
You must first determine whether the defendant doctor(s) failed to exercise the degree of care,
skill and judgment ordinarily employed by other doctors in the same field of specialty, that is,
whether any doctor in this case acted unreasonably under the circumstances. If you find wrongful
conduct, you must then determine whether that conduct caused actual harm to the plaintiff. You
must consider whether the plaintiff would have suffered the harm or injury complained of no
matter what the defendants did, or whether the conduct of the defendants was a cause of the
plaintiff's harm or injuries without which they would not have occurred. If you decide from a
preponderance of the evidence that any doctor who is a defendant in this case, while treating the
plaintiff as his patient, failed to exercise the degree of care, skill and judgment ordinarily
employed by other doctors in the same medical specialty, and that this failure to treat properly
was a substantial factor in causing the plaintiff's injury or harm, then you must conclude that the
plaintiff has met the burden of proof required by law and render a verdict in favor of the plaintiff.
If on the other hand, you find that the doctors who are defendants in this case provided medical
services to the plaintiff with the degree of care, skill and judgment which a specialist in the same
field ordinarily exercises, then you must conclude that the plaintiff has failed to meet the burden
of proof required by law and render a verdict in favor of the defendant.
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In this case, the activity in question is the operation of a place of business where the public is invited to come. The plaintiffs case is based on the claim that the defendants place of business presented an unreasonable risk of harm which caused the plaintiff to be injured. The law which establishes the standard or duty for this kind of activity is La. Civil Code Article 2317: We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. The law intends that, when a condition or a defect in something creates an unreasonable risk of harm to others, and someone is harmed because of that condition or defect, then the person who has control or custody of the thing or the place is responsible even though the person in control was not personally negligent or careless, and even though he may not have known of the condition or defect. The plaintiff must prove: (1) The thing or place in question had a condition or defect that created an unreasonable risk of harm; (2) The thing or place that caused the damage was in the control and custody of the defendant; and, (3) The plaintiff suffered actual damages which were caused by the condition or defect. If the plaintiff proves these three elements by a preponderance of the evidence, then the defendant is legally liable for the damages unless he can prove that the damages were really caused by the plaintiffs own fault or by the fault of some other person. [ GO TO DEFINITION OF CUSTODY AND UNREASONABLE RISK OF HARM]
When the law says that the place or thing had to be in the custody of the defendant, it means that the defendant was either the owner of it, or was in a position to supervise and control it and receive a benefit from it.
When the law speaks of an unreasonable risk of harm, it means that the likelihood that harm to another might occur, and the potential seriousness of the harm, outweighs the importance of the thing or place being available for use in our society. You should consider the purpose which the thing or place served, its utility and effectiveness for that purpose, the likelihood that it would cause harm, the seriousness of the harm it was likely to cause, and the usefulness to society that the defendants ownership and maintenance of the place or thing in the condition it was when the damage occurred. This consideration should be made in light of all the circumstances prevailing at the time. The fact that a thing or place has a flaw or presents a risk does not necessarily mean that it creates an unreasonable risk of harm. If the condition of the place or thing would not reasonably be expected to cause harm to a person using ordinary care under the circumstances, then it does not create an unreasonable risk of harm. There is no set formula in the law for what is reasonable and what is not. You must apply your own common sense and life experiences to arrive at your own determination of whether a risk or hazard is reasonable or unreasonable under all of the circumstances.
It is not a defense under this law that the owner or custodian did not know of a condition or defect. The owner has a duty to discover any conditions that create an unreasonable risk of harm to others.
A person using a thing or place has the duty to see and to avoid obvious hazards. Again, you must
consider all of the circumstances in deciding whether the plaintiff was at fault in causing his own
injury. If you conclude that the plaintiffs own conduct was not what you would normally expect
of a reasonable prudent person, and that the plaintiffs conduct contributed to the injury, then you
must assign a percentage of responsibility to the plaintiff in making your verdict. The defendant
has the burden of proving by a preponderance of the evidence that the plaintiff acted without
reasonable care for her own safety.
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FOLLOWING MOTORIST PRESUMPTION / SUDDEN EMERGENCY:
A following motorist is presumed to be negligent if the motorist collides with the rear of a
leading vehicle, as it is generally assumed that, when this occurs, the motorist has failed in the
responsibility to maintain a proper lookout to events taking place ahead, or that the motorist was
following at an insufficient distance form the preceding vehicle to allow stopping safely under
normal conditions. The burden rests with the following motorist to exonerate himself/herself
from this presumed negligence. When a following motorist is suddenly confronted with an
unanticipated hazard created by a preceding vehicle that the following motorist could not
reasonably avoid and a collision occurs, then the following motorist should be found free from
fault. The rule of sudden emergency cannot be relied on by a motorist who has brought that
emergency on himself/herself by his/her own wrong or who has not used reasonable care to avoid
it. Evans v. Olinde 609 So.2d 299 ( La. App.3 Cir.1992 )
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The duty of the Department of Transportation and Development is defined by statute and by case
law. LSA - R.S. 48:35 adopted by the state legislature reads as follows: A. (1) The office of
highways of the Department of Transportation and Development shall adopt minimum safety
standards with respect to highway and bridge design, construction, and maintenance. These
standards shall correlate with and, so far as possible, conform to the system then current as
approved by the American Association of State Highway and Transportation Officials. Hereafter,
the state highway system shall conform to such safety standards." Generally, if the department
complies with these minimum safety standards, they must be found free from fault when a
motorist claims that he has been damaged as the result of improper signalization or road
markings. However, the department is not allowed to waive or change the minimum safety
standards at random; they must always follow these standards. This law that sets minimum safety
standards is intended to protect motorists and pedestrians with respect to the design, construction,
and care of highways, bridges and other roadways. (Williams v. City of Monroe, 658 So2d 820,
La. App. 2 Cir., 1995). The departments duty to motorists is to keep the roadways and shoulders
of the state in a reasonably safe condition. Whether the department has failed in its duty depends
on the facts and circumstances of each case. The department is not responsible for every accident
that occurs on a state highway because it is not the guarantor or insurer of people traveling on the
roads. It does have the duty to construct and maintain state roads in a way that is reasonably safe
for motorists. Included in this general duty is the specific duty to properly sign and mark
highways to alert unwary drivers to unusually dangerous or unexpected conditions. The duty to
warn motorists of hazardous conditions extends not only to prudent and attentive motorists, but
also to those who are momentarily inattentive. (Cooke V. Travelers Ins. Co., 590 So.2d 657, La.
App. 3 Cir.1991) Also included in the departments duty to motorists is to warn them of dangers
created by ongoing roadway repair and maintenance. This duty of reasonable care requires the
department to erect barriers, signs and markings which are sufficiently effective to warn the
ordinary motorist of dangerous road conditions. (Stephens V. State Through Dept. of Transp.,
440 So.2d 920, La. App. 2 Cir. 1983)
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