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.

The VERY Basics of Federal Court Procedure

One of my newest pet projects is to write useful explanations of the law for lay audiences. There seems to be a legitimate demand for such. So, several days ago, I posted an open question on Twitter: "What is a legal concept or aspect of the law that you know you don't understand but really wish you did?"

I got a few responses online, but I got a couple offline, too, and one of those offline answers was a plea for an explanation of the basic procedure of a federal case like Bourke v. Beshear. I can see why this might be a topic of much interest but little understanding, so I'll try to provide a very general, minimally-technical explanation of how such a case can move through federal court. Hopefully readers can glean the basics.

First, you need a case. To have a case in federal court, before anything else, you need to have "standing." And to have standing, you must have suffered an "injury-in-fact." An "injury" doesn't necessarily mean you have been physically hurt (though it can), it just means somebody has done you wrong in a way that the law recognizes. For instance, that could mean somebody has robbed you, or broken a contract with you, or deprived you of a benefit you were supposed to receive, or maybe the government has passed a law that picks on you for no good reason. All of those situations give rise to "injuries" which federal law recognizes.

If you've suffered an injury (or think you have), you then file a lawsuit in federal court against the person, organization, or government you think is to blame for that injury.

But where do you sue? Which federal court is the proper one to hear your case? An important preliminary note before we proceed: suing someone is a civil court matter. By contrast, a government charging someone with a crime is a criminal matter. This discussion will focus on civil court matters.

The federal court system has three primary levels: trial courts called "Districts," appeals courts called "Circuits," and the big daddy of them all, the U.S. Supreme Court. You can think of the system as a giant pyramid: there are lots of district courts on the bottom, fewer circuit courts in the middle, and just one Supreme court at the top.

So you have to file your initial lawsuit in the lowest layer of the federal court pyramid: a U.S. District Court. But there are 84 district courts in the 50 states (94 total if you count outside territories)! How can you possibly pick the right one? In general, picking the right court requires understanding of both "jurisdiction" and "venue." 

Federal district courts can't just hear any case they want. There are certain criteria to be met for the court to have jurisdiction. Very generally speaking, federal district courts can hear the following:

  • Civil actions arising under federal laws (the Constitution, federal statutes, and treaties). This is called "federal question" jurisdiction.
  • Civil actions involving citizens of different states. This is called "diversity" jurisdiction.
  • Civil actions in which the United States is a party.

There are other situations where district courts have jurisdiction to handle a lawsuit, but the above examples are the big three.

Next, the correct "venue" must be chosen. Again, quite generally, the proper venue is determined by either the home base or residence of the defendant, or the location where the injury occurred. Consider this hypothetical: if a Clarksville, Indiana resident suffers a legal injury in Louisville, Kentucky at the hands of Louisville resident, the proper venue would be the Western District of Kentucky, the district in which Louisville is located. However, if a Louisville resident suffered an injury in Louisville at the hands of a Clarksville resident, the proper venue would be either the Western District of Kentucky or the Southern District of Indiana (where Clarksville is located). It's often more complicated than that, but these are pretty typical examples.

Kentucky has two federal districts: the above-mentioned Western District, based in Louisville, and the Eastern District, based in Lexington. Initially in the Bourke case, three couples filed suit in the Western District and one couple filed in the Eastern District, but the cases were consolidated (at the court's discretion) in the Western District under Judge John Heyburn. Judges at every level of the federal court system are appointed for life, unlike state judges in Kentucky, who are elected. Heyburn was appointed in 1992 by President George H.W. Bush.

Once the Bourke case was consolidated in the Western District of Kentucky, how the case would progress had to be determined. Generally, cases filed in district court are put on a common procedural track:

  • Initial pleadings (complaint by the plaintiff, answer and/or counterclaim from the defendant)
  • Discovery (exchange of documents, information, and witness testimony by the parties)
  • Dispositive motions (written attempts to end the case before trial, through dismissal or summary judgment),
  • Settlement conference (if possible)
  • Trial (either before a jury or in front of the judge alone)

Bourke was different, though. Judge Heyburn, like district court judges in Utah, Oklahoma, Texas, Virginia, Ohio, and Tennessee facing similar challenges to discriminatory marriage laws, didn't perceive the standard litigation procedure as appropriate. Instead, Judge Heyburn treated the case as purely a matter "of law," not a matter "of fact." Therefore, no discovery, depositions, or trial were necessary. Heyburn instead imposed a briefing schedule, with the outcome of the case to be determined by written arguments only.

Whether by trial or by dispositve motion, a federal court case ultimately ends with a final order from a judge. A final order, except in some rare exceptions, is necessary before either party can file an appeal. The final order in the Bourke case was issued in February. But to which court does the appealing party turn?

The federal district courts are organized under an umbrella of "Circuits," thirteen appellate courts which hear appeals from federal district court decisions. The circuits are organized as collections of states. For example, the Sixth Circuit Court of Appeals hears all federal district court appeals from Tennessee, Kentucky, Ohio, and Michigan. The Seventh Circuit hears cases from Indiana, Illinois, and Wisconsin. The two exceptions to this system are the D.C. Circuit Court of Appeals and the Federal Circuit Court of Appeals.

Appeals in the circuit courts are generally presided over by a panel of three circuit judges. The parties (now called the "Appellant" and the "Appellee") first write long briefs arguing why the lower district court decision was wrong or why it was correct. Then, upon request of the parties, the three-judge panel presides over an oral argument, in which lawyers for each side stand and deliver speeches bolstering their positions. These speeches are frequently interrupted by pointed questions from the judges, who seek concise answers to clarify the legal issues and implications raised by the case. This process is usually quite nerve-wracking for the attorneys.

When a party appeals a federal district court ruling, they have to do so on specific grounds. For example, a party can argue that the district court judge applied the wrong law. Or they can argue that the judge failed to follow the correct procedure. The circuit court then issues a narrow ruling on the appellate issues actually raised by the parties. In other words, if a party appeals a district court order only on the basis that the wrong case law was used, the circuit court then addresses that issue only. Was the district court in error on the law? If not, the district court decision is "affirmed." If the district court made an error, the case can be "remanded" to be heard again by the district court with specific corrective instructions, or it can be "reversed" entirely, the loser below becoming the winner instantly.

Let's say a Plaintiff won a district court case, and the Defendant appealed to the circuit court. After oral argument, the circuit court reversed the district court and the Defendant became the winner. In the federal court system, the Plaintiff now has three options: it can take its ball and go home; it can request a rehearing "en banc," which is Latin for "by all the judges in the circuit" instead of just three; or, the Plaintiff can file a long, formal motion called a "petition for certiorari" to the U.S. Supreme Court. "Cert petitions" are lengthy, bound documents requesting that a circuit court decision be reconsidered by the highest court of the land. Once again, specific issues must be brought up, and the Court, in most cases, restricts its ultimate ruling to the arguments made by the parties.

The U.S. Supreme Court has broad discretion in determining which cases it will hear. The vast majority of cert petitions are rejected with no explanation. For those cases, whatever the circuit court decided becomes the final word. The cases which are "granted cert" get added to the Supreme Court's docket. The parties then brief the issues in a series of long written documents discussing the relevant factual and procedural history of the case, the statutes, cases, or other law which are involved, and anything else the parties think the Court should think about before ruling.

In most Supreme Court cases, once the briefing is done, the parties appear for oral argument. Oral argument before the Supreme Court is very similar to oral argument before a circuit court, but instead of three judges firing pointed questions at the attorneys, there are eight.* The Justices (as they're called on the Supreme Court) are big personalities with their own particular idiosyncrasies. Justice Breyer, for example, is often giggly, boisterous, and interested in pragmatic implications. Justice Scalia, on the other hand, is articulate but sometimes badgering, not one to suffer arguments he philosophically disagrees with. Once oral arguments are complete, the Justices then formulate their decision in private. The process often takes many months.

The Supreme Court, like the circuit courts below them, have three primary options: they can affirm the circuit court's decision; or they can remand the case to the district court to be retried (usually with specific instructions or new clarity in the law); or they can reverse the circuit court, leaving the original district court decision as the final, binding ruling. Other options exist, of course, but those are the most common.

As one final hypothetical to show you how complicated the system can be, consider this timeline for a make-believe case we'll call Case X.

  1. Case X is tried before the Western District of Kentucky.
  2. The Western District judge rules that the Plaintiff wins Case X.
  3. The Defendant appeals to the Sixth Circuit Court of Appeals.
  4. The Sixth Circuit rules that the Western District judge applied the wrong law, remands the case for retrial in the Western District.
  5. The Plaintiff files a cert petition to the U.S. Supreme Court, appealing the Sixth Circuit ruling.
  6. The Supreme Court grants the cert petition, decides to hear Case X.
  7. The Supreme Court affirms the Sixth Circuit, meaning Case X still must be retried before the Western District.
  8. Case X returns to the Western District to be retried, effectively restarting the entire process.

I would highly suggest that any readers still conscious and interested in federal procedure do their own research. The rules are complicated and the full range of outcomes is diverse. Hopefully this relatively brief guide has either piqued your interest or helped you realize never to ask questions about federal procedure ever again.

*There are actually nine Justices of the Supreme Court, but Justice Clarence Thomas hasn't asked a single question during any oral argument since February, 2006.