Court overhauls standard jury instructions for civil cases.

The Supreme Court has approved a major reworking of the Florida Standard Jury Instructions in Civil Cases book, the first comprehensive revision of the instructions since their inception in 1967.

"I think Florida now has the most modern jury instructions of any state in the nation," said Larry S. Stewart, who spearheaded the project for the Supreme Court Committee on Standard Jury Instructions in Civil Cases.

"They are instructions that improve jury communications many fold. Jurors are going to be able to understand them a lot better now with the plain English changes we made, and I think we are going to get better results in our cases in the courts."

The committee has been working on the revisions to the more than 400-page book since 2006.

"We are very excited that the court has adopted the recommendations of the committee," Tracy Raffles Gunn, chair of the CSJICC, said. "It was a group effort, and a lot of very dedicated people on the committee put a lot of time and effort into it, and we are very proud [the court] approved the recommendations we made."

The reorganization was based upon the delineation of separate sections, which include oaths, preliminary instructions, evidence instructions, substantive instructions, damages, general substantive instructions, closing instructions, and supplemental matters. Each of the substantive areas--General Negligence; Professional Negligence; Products Liability; Insurer's Bad Faith; Defamation; Malicious Prosecution; False Imprisonment; Tortious Interference with Business Relationships; Misrepresentation; Outrageous Conduct Causing Severe Emotional Distress; Civil Theft; Contribution Among Tortfeasors; Claim for Personal Injury Protection Insurance Benefits (Medical Benefits Only); Intentional Tort as an Exception to Exclusive Remedy of Workers' Compensation; and Unlawful Retaliation--are now organized into separate sections and include pertinent standard instructions which are reproduced within each substantive section or, when necessary, tailored to the specific substantive area.

The court said the basic "template" used in the reorganization of the substantive law instructions includes an introduction instruction, an instruction with a simple summary of the case, instructions with the rules, and instructions on the issues with the applicable burden of proof.

The amended standard civil instructions also include a number of plain language modifications which attempt to simplify the instructions to increase juror understanding by changing nonessential "legalese" to its plain English equivalent.

"Under the amended instructions, in the exercise of its discretion, the trial court may choose to instruct the jury at the beginning of the case as to substantive matters, prior to the introduction of evidence," the court said. "To that end, we authorize introductory instructions under section 200 and initial instructions for each substantive section. We reiterate that the decision as to the timing of instructing the jury rests solely with the trial judge."

The committee also submitted a number of reports that extended beyond reorganizing and rewording, seeking amendment of substantive aspects of some standard civil instructions under the reorganization format, including instructions covering introduction; summary of claims; greater weight of the evidence; clear and convincing evidence; legal cause; preemptive charges; burden of proof on preliminary issues; issues on claim (also designated issues on main claim or issues on plaintiff's claim); burden of proof (also designated burden of proof on main claim or burden of proof on claim); defense issues; and burden of proof on defense issues.

The court adopted all those changes, too, except a proposal to amend the definition of "greater weight of the evidence."

"Instead, we reauthorize the substance of former standard civil jury instruction 3.9, 'Greater Weight of the Evidence,' which is now designated as, or included in, instructions 401.3, 402.3, 404.3, 405.3, 406.3, 407.3, 408.3, 409.3, 410.3, 412.5, 413.3, 503.1b(1), b(2), b(3), b(4), and c(1), and 503.2b(1), (b)(2), (b)(3), and (b)(4)."

Stewart said the "greater weight of the evidence" proposal was somewhat controversial.

"What we were trying to do with greater weight was give a little more explanation to the jury about what greater weight means and a lot of people were concerned that this could lead to, or be misinterpreted, as changing the standard," Stewart said. "So I think the court probably made a wise decision there and left it where it is."

Stewart said the revisions were needed because the book had grown exponentially over the years in an ad hoc way to the point where it was difficult for lawyers to work their way through it. He said while the changes are extensive, none alter the basic theory underlying the instructions, which is set forth in the explanation to the original standard instructions.

The committee also worked to put the important elements the jury had to apply up front in the instruction.

Here is a summary of the changes:

* To improve juror communications, the timing of instructions during the trial process and the sequence in which the instructions are to be given has been reordered. The new format provides for instructions before the taking of evidence and for final instructions before closing argument. And, under the reordered sequence, the jury will receive first a concise description of the case, followed by all necessary definitions it must use.

* To improve juror understanding, "plain English" terminology has been used wherever that could be done without altering the substantive meaning of the instructions. In some instances this has made the instructions slightly longer, but the committee believes it will result in a better understanding of the overall instructions.

* To improve ease of use of the instructions, all substantive instructions for particular causes of action have been organized in single sections. For example, the instructions for medical malpractice actions, which previously appeared at several different locations, are now all contained in section 402. Additionally, instructions for use during trial now appear in section 300 in the order that they most logically will occur.

* A number of the instructions have been updated. For example, the instructions for medical malpractice have been substantially rewritten, and new provisions have been added to the punitive damage instructions to cover additional scenarios and reflect new decisional law. (The products liability instructions were filed as a separate case and have not yet been approved; oral argument in that case will be held May 5.)

* Obsolete instructions have been eliminated, and former instructions that were only notes to not give an instruction were moved into Notes On Use. Additionally, the pre-1999 punitive damage instructions, which will soon be obsolete, have been moved to Appendix C, thus making the current punitive damage instructions easier to use.

* Former Comments and Notes on Use have been combined into Notes on Use. Over time, the distinction between the two had blurred, and the terms were used inconsistently. The committee did not want any significance to be drawn from whether a particular notation was a Comment or a Note on Use, so all observations or explanations of the committee are now labeled Notes on Use. Additionally, the Notes have been updated to make them current, eliminate obsolete material, clarify the points being made, and point out issues that exist on which the committee has not taken a position so that the court and counsel can address them in individual cases.

* The Model Charges and Verdicts have been moved to Appendices A and B since they are not part of the official instructions but are merely illustrative of how the instructions could be used in hypothetical cases.

* A new section on Oaths has been added. While oaths are not part of standard jury instructions, the committee believed their inclusion would be of assistance to the bench and Bar.

* The reorganized book contains the new instructions approved in the Juror Innovations Report and all instructions approved by the Florida Supreme Court as of the date of the implementation of the book.

The court acted March 4 in case no. SC09-284.

By Mark D. Killian

Managing Editor