As I once heard Nat Ozmon say, sometimes “trite is right.”
Previously, I’ve discussed IPIs 3.08, 15.01, and 30.21. Today, let’s cover the most basic and also most underused instruction, IPI 1.01.
Most important, they are your deciders. I won’t say it ever happened with me, but I have heard stories—crazy stories—of a judge maybe not paying attention for a moment, maybe missing a point. Maybe not feeling that he needs to know that point because he does not have to make the decision. Maybe knowing that if it ever comes to it, he could look at the transcript, but feeling it far more important that the jurors heard it. Yes, I won’t say it ever happened to me.
The lesson is, treat your jurors as you treat your judge. Talk to them. Make sure they are following you. Look at their faces and expressions and make eye contact. Make sure they can hear you. Make sure they can actually see and read your exhibits. How many times have I seen lawyers posting slides that no one can actually read!? Beautiful and important graphs and notes which do them no good at all because the jurors cannot see them. Don’t turn your back on them. Respect them. Respect their time and commitment. They are going to decide your case and usually the judge is going to go along with their decision.
The next point is, we tell the jurors what they may and may not use for their decision:
May use: evidence, reasonable inferences from the evidence, exhibits admitted, common sense from their experiences in life, the juror’s own notes, everything that happens in the court room, and most important, the juror’s own memory.
May not use: speculation, prejudice, sympathy, independent investigation, internet, TV, radio, discussions with anyone else, transcripts (usually), statements or arguments of counsel unsupported by evidence, movies and videos of the event (actually becoming more common), anything stricken by the court.
So here’s how that might play out at trial:
Lawyer #1: “Objection!! That’s not the evidence!!”
Lawyer #2: “Judge, it is most certainly a reasonable inference from the evidence.”
Lawyer #1: “No, it’s just speculation!”
Lawyer #2: “It’s not speculation, it’s common sense.”
Lawyer #1: “It’s prejudice!”
Lawyer #2: “No, Judge, it’s argument based on evidence.”
Contrary to what some defense attorneys argue, jurors are never told to disregard their emotions in their decision. In fact, many of the instructions tell them they must consider emotion. And that’s truth because the reality is we make most of our important decisions from our emotions.
Of all the factors on which they must base their decision, we tell them most repeatedly to use their own memory. That means a trial lawyer must create memories. Memories, not dreams. You have to keep them awake and attentive to the points you want them to remember. Important points have to be carved out of the muddle by impact. Only points made with impact are going to survive a multi-witness trial and make it into a juror's memory when deliberating.
A final point for today is subparagraph 5 in which we give jurors nine factors to evaluate credibility of witnesses of which they are the sole judges.
Those nine factors are:
- ability to observe
- opportunity to observe
- prior inconsistent statement or act
Review and use those nine factors before every deposition and for every direct and cross exam of every witness. Which ones help, which ones hurt? At the end of the case, you’re going to say, “The judge will tell you to consider____ in assessing credibility. When you think about the testimony of Witness A you need to consider____.”
Every time I review the instructions, I find new nuggets. If you want to cross the finish line, you need to know where it is. Instructions are the finish line.