Bad Jury Instructions are an Enemy of Justice

Most people are not lawyers. Most people in America don't have even have a bachelor's degree. As laypeople, their exposure to complex legal concepts is minimal at best. This is no fault of theirs, it is simply a statistical fact.

Many laypeople without college degrees will be called for jury duty. If chosen to sit on a jury, they could spend weeks or even months listening as attorneys and witnesses present competing stories about what happened that caused a dispute between them. After the closing arguments are heard, the jurors retire to the deliberation room to decide who wins.

Let's say we have a group of twelve jurors, only four of whom have ever been to college and none who have been to law school. They have been listening to a trial about a business deal gone bad. One party was trying to sell some property and the other was trying to buy it. Both parties say they entered into an agreement, but they don't agree on what the terms of that agreement really were. There were some written documents exchanged but nothing that is clearly a formal written contract.

So the first problem the jurors have to solve is whether there was really a contract at all. So they sit down in the deliberation room and are given a stack of papers with instructions on them. The very first thing they read is this:

A contract is a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes a duty. To be binding, a contract must include a manifestation of mutual assent to the terms and conditions of the contract. This is referred to as the “meeting of the minds.” There must be a meeting of the minds; there can be no contract if only one party intends to be bound.

What does this paragraph mean? I went to law school, took two semesters of contract law, and I still had to read this paragraph twice to make sure I fully understood it. For anyone who never went to college, let alone law school, no number of readings is enough to fully get what it is trying to say.

The above paragraph is from a jury instruction template for breach of contract cases. This is actually what lawyers and judges recommend jurors see when they deliberate in a trial. And it gets worse:

Because intent, including intent to be bound, is seldom susceptible to direct proof as it relates to a person’s state of mind, the law presumes that a person intends the natural and probable consequences of that person’s acts. The meeting of the minds or the mutual manifestation of intent may be made wholly or partly by written or spoken words or by other acts or conduct, and an internal or unexpressed intention not to be bound is ineffective.

Got it? Now, the directive:

In determining whether there was any contract, you must decide whether or not there was a meeting of the minds between the parties with respect to the terms of the alleged oral agreement and a present intention to be bound.

Easy, right?

If you've never taken a class on contracts in law school, you can read this paragraph a dozen times and still not be totally sure what you're supposed to do. And even if you do get it, you probably have a bunch of fellow jurors who don't, and won't no matter how much you try to explain it to them. Again, that's not their fault, considering the instruction they've been given.

The law is complex, nuanced, and takes years of training to grasp its basic concepts. And you can't even get accepted to receive that training unless you were a pretty good student in college. For everybody else, it's mind-numbing and rightfully so.

The fact that attorneys and judges regularly submit and approve jury instructions like this can only be explained by tradition and laziness. No attorney who truly wants a jury to rule in their favor should submit instructions that are so dense and complicated that they're more at home in a law school textbook than in the hands of twelve non-lawyers who must fairly resolve a dispute.

Better instructions are possible. As a quick exercise, I'll re-write the first paragraph in a way that breaks down each of the concepts in an easier-to-digest way:

A contract is a promise or a set of promises. For example, Allen promises to give a car to Mary, and in exchange, Mary promises to give money to Allen.
Once two parties have entered a contract by making promises to each other, the law recognizes that each has a duty to the other. They are bound to not break their promises.
Breaking a promise is called a breach of contract. The law provides a remedy when one person breaks their promise.
But for the contract to be binding on each party - for there to be a duty not to break a promise - there has to be a "meeting of the minds."
Both parties must intend to enter into the contract and to be bound by it. There is no contract if one person intends to hold the other to their promise without being held to their own promise in return.
For example, if Allen never intends to give the car to Mary, there is no contract between them. Mary is not bound to her promise to give Allen money.

Now, that's wordier, but hopefully easier to digest for somebody who has had no previous legal training. From the lawyer's perspective, even if your case is weak, it is far better to have a jury who knows exactly the questions they're supposed to answer than a jury totally bewildered. It decreases the risk of appeal and it keeps the judge from having to make awkward, complicated remedial rulings that simply delay the process even longer.

Better jury instructions are possible. As our country continues to struggle to fully educate all of its citizens, making complicated legal standards easy for laypeople to digest makes just outcomes more likely.

Client, Help Thyself

Attorney Scott Greenfield writes on his blog today about something most lawyers have experienced: clients who are their own worst enemies. He shares, via another blog post, the common problems of clients who don't produce important information on time (or ever) and consequently make their lawyer's job much, much more difficult than it already is.

This goes to one of my basic life rules, that nothing is a problem. Until it is.  Lawyers are janitors, cleaning up the mess people leave behind when things go bad.  When things are peachy, who needs a lawyer?  Break a law and don’t get caught? This law stuff is easy. But get caught and suddenly it turns really, really hard. Go figure.
Given the pervasiveness of law in people’s lives, and the rarity with which people are actually forced to confront legal problems, mostly because things somehow manage to work out or they just don’t get caught, is it any wonder that people don’t take the law seriously?  And if the law isn’t serious, then neither are lawyers. N’est pas?

It is my practice to remind clients - sternly - that it is THEIR case we're embarking on, not mine, so their direct and prompt participation is required. That mandate doesn't always compel them at crunch time, though. I have experienced my own fair share of clients who don't respond to emails, or phone calls, or letters, or requests of any sort whatsoever.

In my line of work, which is mostly representing plaintiffs in lawsuits against other people, companies, or the government, the case cannot proceed without my client's full participation. They're on the offense. It's their fight. Defense attorneys can attack the pleadings alone, cutting away at the allegations and factual claims  of plaintiffs without producing a single document. Plaintiffs need to have all their ducks in a row from the outset.

If a plaintiff survives the initial stages of filing a suit, they then have to start producing names, documents, and any other background info they have. Without that, the case can't proceed at all. Then they have to prepare for their deposition, and suffer through it. And then, assuming their case survives summary judgment, they have to get ready for trial, which requires more than a few minutes of discussion.

Filing a lawsuit is a big deal. It's a major life event. Clients can't just blow it off and assume their lawyer has everything taken care of. They don't have to micromanage the lawyer's every move in litigation, but clients do have to be engaged and responsive to lawyer requests. Every case depends on it!

Why You Should File An Amicus Brief

In many cases, litigation doesn't just affect the parties involved. A civil lawsuit by an individual against a company, for example, could have an impact on other companies who compete in the same market or operate under the same legal rules and regulations. The way a court applies the law in just one case can have wide repercussions. And courts don't just apply existing law, they sometimes change it.

The federal court system and most states have rules that allow third parties to intervene in existing lawsuits. But intervention is rare. More often, a third party won't be so closely affected by a case that they can intervene but will still have a stake in the outcome. That's why court rules allow for briefs from amici curiae, or "friends of the court." Companies, organizations, individuals, or groups of individuals can submit arguments on behalf of themselves, encouraging courts to rule in favor of the party whose interest is most closely aligned to theirs. As organizations and individuals lobby legislators, so too can they lobby the court system through amicus briefs.

Amicus briefs aren't just lobbying efforts, however. They can (and should!) assist courts in reaching the right decision in tough cases with complex legal issues. In the words of attorney Stephen Shapiro, speaking about amicus briefs submitted to the U.S. Supreme Court:

[A]n amicus brief must bring something new and interesting to the case. This might be better research, an explanation of the connection between the particular case and other pending cases, an improved discussion of industry practices or economic conditions, a more penetrating analysis of the regulatory landscape, or a convincing demonstration of the impact of the case on segments of society apart from the immediate parties. It also can be helpful to discuss the appropriate breadth of the Court's decision in light of such considerations.

Amicus briefs should not just rehash an argument already made to the court. They should be novel, or more expansive, or suggest an outcome that may be more of a compromise than the interested parties are demanding. They should be filed by third parties with a profound and specific interest in the case at bar.

Courts routinely grant motions to submit briefs of amicus curiae. The U.S. Supreme Court, for example, has what could fairly be described as an open door policy. However, the Seventh Circuit Court of Appeals has articulated stricter rules, limiting the number of briefs filed:

An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.

Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997) (internal citations omitted).

The actual impact of an amicus brief often depends on the judges to whom it is submitted. Some judges, like Judge Richard Posner of the Seventh Circuit and Justice Antonin Scalia of the U.S. Supreme Court, are openly hostile to amicus briefs. Others are more supportive. At the conclusion of oral arguments before the Sixth Circuit Court of Appeals in the same sex marriage cases (August, 6 2014), presiding Judge Jeffrey Sutton thanked the many amici filers for submitting a wide breadth of arguments for his panel to consider.

Cases with major social implications, such as Brown v. Board of Education, Hobby Lobby v. Sebelius, and the current same-sex marriage cases consolidated as Obergefell v. Hodges, attract the most amicus briefs. Cases with more limited scope, such as regulatory challenges in certain industries or procedural disputes, garner less outside interest. In those cases, an effective amicus brief in favor of one party or the other can play a bigger role in the outcome.

A study of Supreme Court decisions from 1946 to 1995 revealed a steady increase in the number citing amicus briefs. By 1995, amicus briefs were cited in 37% of the Court's rulings. And amicus briefs can generate significant media coverage.

If you or your organization has a unique interest in the outcome of a case currently before a judge or court sympathetic to amicus briefs, it may be a good idea to file one. You should seek counsel who is competent in the law implicated by the case and admitted to practice (and experienced in filing briefs) in that court. And don't wait - amicus briefs are usually due at the same time the briefs for the parties are due, so timing is important. Counsel should have at least one month to prepare and file your amicus brief.

If you are interested in filing an amicus brief in a pending case, consider it seriously and seek counsel now. The clock is ticking, and you could be doing yourself or your organization a great disservice if you ignore appropriate opportunities to assist courts with cases that matter to you.