Ep. 1 Civil Pattern Jury Instructions

In Tennessee Court Talk's premier episode, Judge Butch Childers (Ret.) and Nashville Attorney John Day, two members of the Tennessee Judicial Conference Pattern Jury Instructions Civil Committee, discuss the importance of jury instructions and how critical they can be to the outcome of a case, the evolution of the committee and advice to judges on giving instructions to a jury. 

Produced by Nick Morgan

Transcript

00;00;00;00 - 00;00;23;22
Host
Welcome to Tennessee Court Talk. I'm your host, Barbara Peck. And today we are discussing civil pattern jury instructions. This podcast is intended for legal audiences, including judges, lawyers and law students. We have two guests with us today. The first is retired judge Butch Childers. Judge Childers spent more than 30 years on the trial bench in the 30th Judicial District, which includes Shelby County and Memphis.

00;00;23;24 - 00;00;45;19
Host
He spent more than 25 years as the chair of the Tennessee Judicial Conference. Pattern. Jury instructions Civil Committee. He still currently serves on the committee. Mr. John Day is a Nashville attorney who is one of two attorneys on the committee. He has been a trial attorney for more than 30 years, and has tried jury cases in federal and state courts across Tennessee.

00;00;45;22 - 00;00;51;12
Host
He is the author of four books and numerous peer reviewed journal articles. Welcome to you both.

00;00;51;14 - 00;00;52;07
John Day
Good afternoon.

00;00;52;12 - 00;00;53;12
Judge Childers
Good afternoon.

00;00;53;14 - 00;01;14;17
Host
So my first question for both of you is last year in the state of Tennessee, there were 226 civil jury trials, 167 of which had no damage awards and 59 had verdicts ranging from $518 to 1.2 million. Have you ever felt that the outcome of a case was affected by the jury instruction?

00;01;14;19 - 00;01;33;02
Judge Childers
Judge Childers yeah, Barbara, I like to tell a story about a case. Just a few years after I came on the bench and I would go out in the hallway sometimes outside of the courtroom, to after I thank the jurors in court and discharge them, I'd go out and shake the jurors hands and and talk to them about their experiences serving on a jury.

00;01;33;04 - 00;01;53;08
Judge Childers
And this lady came up to me and I shook her hand and I said, did you enjoy your experience, ma'am? And she said, judge, honestly, I didn't, but I now have to tell you that we we paid attention to your instructions. And even though I wasn't happy about the verdict we reached, I thought it was the right verdict based on the instructions on the law that you gave us.

00;01;53;08 - 00;02;01;20
Judge Childers
So in that respect, it affected how the jury decided the case because they did paid attention. Thank goodness, to the court's instructions.

00;02;01;22 - 00;02;04;09
Host
Mr. day, if you ever felt the outcome of a case.

00;02;04;11 - 00;02;33;14
John Day
Well, I think that in every single jury trial there are one or more and an instructions seized on by one or more of the lawyers, and they tend to emphasize those in closing argument, because they think it will help them get the result. But the first time it it really hit me and quite frankly, bit me was in a trial in Warren County in 1984 where, a lawyer asked for the defense lawyer.

00;02;33;16 - 00;02;59;03
John Day
I was the plaintiff's lawyer in that case, asked for and received an instruction on the physical facts rule, which is instruction 2.25. And it basically allows the jury to disregard the testimony of a witness if it is inconsistent with physical facts. It's a very, very powerful instruction. And and quite frankly, the lawyer did an excellent job utilizing it and weaving it through his closing argument.

00;02;59;06 - 00;03;06;01
John Day
And I think turn the case. So do jury instructions make a difference what they should. And I think they do.

00;03;06;04 - 00;03;23;28
Host
Excellent. So let's talk about the work of the committee a little bit. The civil the committee publishes new and updated pattern instructions every fall. So, Judge Childers, tell us a little about the committee and its mission. What are you trying to accomplish every year when you're publishing the new instructions?

00;03;24;00 - 00;03;55;28
Judge Childers
The mission, Barbara, is to to help trial judges, primarily, particularly with the newer judges who come on and aren't used to giving jury instructions and don't know what instructions to give. A lot of states have pattern jury instructions. And so in the mid 70s, Chancellor John Templeton, chancellor in Shelbyville, was interested in and came up with the idea of having pattern instructions for civil cases and for criminal cases.

00;03;56;01 - 00;04;21;29
Judge Childers
And so the idea was to help the trial judges. But it also helps the trial bar across the state as well, to be able to go to the instructions and use those, instead of having to sort of reinvent the wheel, I call it, they can go to the to book the pattern jury instructions as a start for, for, determining the law in a particular area.

00;04;21;29 - 00;04;28;22
Judge Childers
It's really helpful there, but also in, in, in, structuring jury instructions for the juries and jury trials.

00;04;28;25 - 00;04;43;00
Host
So the first instructions were developed in 1978. And you joined the committee in 1984. And then went on to chair it for almost 25 years, or a little over 25 years. So tell us a little about the history of the jury instructions in Tennessee.

00;04;43;02 - 00;05;06;02
Judge Childers
As I said, Chancellor John Templeton, I think it was sort of his, his brainchild, Judge Ed Cole from Knoxville also was on the first committee. Judge Jim Swigert from Nashville, my, mentor and Memphis Judge Bill O'Hearn was the chair of the committee for several years. And so it was in the mid 70s when they developed the idea.

00;05;06;02 - 00;05;34;10
Judge Childers
And then the committee worked for a number of years before they ultimately published the first edition of the pattern Your Instructions to Civil Instructions in 1978. That was the first edition. I joined the committee in 1984. Brand new judge came on the bench September 1st, 1984, and I looked at the committees that were available in the Judicial Conference and looked at the pattern Jury Instruction committee and and not thinking, believing I didn't know a whole lot about the law.

00;05;34;13 - 00;05;51;25
Judge Childers
I decided this was a good way for me to learn more about the law and be on the cutting edge of the law. And so I decided to join the committee. So shortly after I came on the committee, the chair, judge O'Hearn at the time, decided that we need to look at coming up with a second edition of the work.

00;05;51;25 - 00;06;14;06
Judge Childers
And so we divided, he divided us up into committees, and I worked on, as I recall, chapter six, which is the professional negligence charges, medical malpractice, legal malpractice, that sort of thing. And we would then work, each of us on a particular section. When I came on the bench. The first edition is is as good a start as it was.

00;06;14;09 - 00;06;36;20
Judge Childers
There were instructions that were one paragraph long sentences, and when I was giving those to the jury, I would watch their eyes glaze over. You know, I had a I had four years of undergraduate school and three years of law school, and I didn't understand some of the instructions that I was giving to the jury because of the length of the of the instruction and the and the one paragraph long sentences.

00;06;36;22 - 00;07;00;20
Judge Childers
And so my goal from the start was to shorten those instructions, to make them as succinct and brief as we could, and giving them to laypeople who hadn't heard a lot of these terms. And so ultimately, in 1988, we published the second edition. Well, in in May of 1992, one of our good members, Judge John Maddox from cook Book, Call me.

00;07;00;20 - 00;07;24;20
Judge Childers
I was still at home getting ready for work that morning. And he said, which of you, read the case of McIntyre versus Ballantine? And I said, well, no, John, I haven't looked at it yet. Well, it just had been published the day before, came out the day before where our Supreme Court, did away with, with contributory negligence and adopted comparative part for Tennessee.

00;07;24;23 - 00;07;53;04
Judge Childers
Just a week after that, the Supreme Court, the Tennessee Supreme Court decided another case. Hodges versus two, which happened to be a case that that was came out of my courtroom in, in Shelby County, involving punitive damages. But to compare it, it followed a change in Tennessee. The adoption required us to completely, revamp the entire, work of the jury instructions because of the adoption of compared to fault.

00;07;53;07 - 00;08;20;05
Judge Childers
So, sort of like judge O'Hearn, my mentor, divided up committees in the conference, in the committee, and, had subcommittees for every sections of the book contracts, negligence, malpractice, that sort of thing. And each committee looked at the substance of the charge and, and and worked on making the charges shorter and more succinct and more comprehensible by lay jurors.

00;08;20;07 - 00;08;40;24
Judge Childers
And then we also appointed what I call what we referred to as the Clarity Subcommittee. And the Clarity Subcommittee looked at every single instruction that was that was, presented by each of the subcommittees. And we tried to make, as much as we could, each instructing gender neutral, where we tried to take out the he or she out of instructions.

00;08;40;27 - 00;09;04;07
Judge Childers
And we also tried to take out some of the complicated legal terms like proximate cause, I'd tell the jury when I got to that instruction, like, gentlemen, I'm saying proximate, not approximate. Like we were used to hearing proximity. And I'd spell it out. Well, we changed that word to legal cause. It was the very same legal definition, but it was a term that people could understand.

00;09;04;14 - 00;09;27;22
Judge Childers
We changed the word exercise to use instead of exercising reasonable care, use reasonable care. We change the, the prudent, careful, and prudent person to a reasonably careful person, that sort of thing. To try to make it more understandable. We actually used a computer program, to try to reach, an average eighth grade level for, for jurors.

00;09;27;22 - 00;09;53;08
Judge Childers
The computer tells us we reached the 10th grade level. We didn't quite get to our goal, but we got got, better. And and so the, the clarity subcommittee would make sure that that in, in making their changes, they didn't change the substance of the charge. The legal substance was the same, but it put it in, in more, general everyday language that we use.

00;09;53;11 - 00;10;02;26
Host
So the committee itself is part of the Tennessee Judicial Conference. And currently there's 24 members. Can you tell us a little bit about how it's evolved over the years?

00;10;02;27 - 00;10;27;21
Judge Childers
We've generally had between 20 and 24 judges who have served on the committee. When we were doing the TPF three that came in in 1998, the third edition, we call it TPN three. And so lots of work, every judicial conference three times a year. The committee spends about three hours, at least 20 to 24 people spend about three hours in doing this work.

00;10;27;21 - 00;10;49;24
Judge Childers
So there's a lot of hard work involved with it. In, in 19 in, 2004, we decided to go for the civil, pattern jury instructions to a south bound by. And before that, we did a little supplement to the hard bound volume. In 2004, we created a soft bound volume like the criminal court judges, the committee had done several years before.

00;10;49;27 - 00;11;16;13
Judge Childers
And so in 2004, it was the fourth edition. And so it sort of worked out in 2005 was the fifth edition. And now we're, 2019. So we'll have the 19th edition of the pattern, several pattern jury instructions. And so we, we look at we assigned the Southwest Third Reporter series now to each committee member, and they review the cases in each volume.

00;11;16;15 - 00;11;37;20
Judge Childers
And then they send a written report to the chair about cases that they found in that, volume, of Southwest Third, to see if there's something the committee needs to look at to either change your comment, you should note, or change or modify, the substance of an existing instruction or to create a new pattern jury instruction.

00;11;37;23 - 00;11;39;08
Host
Mr. day, when did you first join?

00;11;39;15 - 00;12;08;04
John Day
I joined in 1992, I believe. Is either late 92 or early 1993. Judge Childers and the other members of the committee decided that they would like to have, help from a couple lawyers. So I was then doing and still, doing plaintiff's work. And then Jim Durand, who's a Nashville lawyer, very prominent and, good guy, as a defense lawyer.

00;12;08;04 - 00;12;16;13
John Day
So we work together with the, committee for it. I guess Jim was on the committee, but judge for 23 years.

00;12;16;15 - 00;12;20;19
Judge Childers
Yes, Jim just retired. So we've got a new member, Art Brock, who is the defense.

00;12;20;19 - 00;12;44;11
John Day
Lawyer from Chattanooga. One thing I want to add is that in addition to the reading, the volumes, from, southwest now, third, judges also bring instructions that they've given that they've developed for a particular case and they will bring to share with the judges on the, committee itself. And many times those will be incorporated into the book.

00;12;44;13 - 00;12;52;00
John Day
So it's a real sharing, among the judiciary, trying to advance the ball, for their brothers and sisters on the bench.

00;12;52;03 - 00;13;10;25
Host
So you mentioned your you're really striving for plain English, and there's been quite a few studies out there that show that jurors really struggle with your instructions and the legal ease and those. But how do you balance as a committee the desire to have it? The instructions in plain English, with the need to have it legal, precise, legally precise.

00;13;10;25 - 00;13;14;24
Host
Have you ever hired a linguist attorney, one to work with the committee?

00;13;14;26 - 00;13;39;21
Judge Childers
It's funny you should mention that, Barbara. I attended a symposium on jury instructions at UT Knoxville. I, former judge Penny white is a law professor there, and she organized a symposium on jury instructions and brought in some leading linguists from across the country. I remember there was a guy who had written a book on that, happened to meet an English professor at University of Tennessee.

00;13;39;23 - 00;14;02;02
Judge Childers
Yeah. And, and I can't remember her name right now. Bethany. Doctor. Bethany Dumas. Doctor. Bethany Dumas. And and struck up a conversation with her, and I asked her if she would be available and might want to join the the Tennessee Patterson Jury Instruction committee, civil committee. And that was her area of interest. And so we got her involved to.

00;14;02;02 - 00;14;02;17
Judge Childers
Help.

00;14;02;19 - 00;14;26;03
Judge Childers
Her help us put language of instructions in plain English again, where we don't lose the substance, the legal substance of the instruction, but we put it more in plain English, where laypeople who who never have heard, never heard a lot of these terms before, to put it in language that they can understand and comprehend.

00;14;26;05 - 00;14;51;00
John Day
But to be candid, very, very candid, maybe more candid than I should be. There's a constant struggle. We have different people. The committee, all of whom are well-meaning, who disagree on this on a regular basis. I am one of the people in the camp. That is, let's put the cookies on the low shelf Supreme Court and the Court of Appeals, right.

00;14;51;00 - 00;15;16;19
John Day
For judges and lawyers. They don't write for laypeople, but there are other people on the committee. Once again, nothing but the best intentions who believe that we should use the exact words that the appellate courts use and it is it's not every single meeting. It did not happen at the meeting we just had this week. But it is a constant back and forth, all good natured.

00;15;16;19 - 00;15;18;19
John Day
Like I said, everybody with the best of intentions.

00;15;18;22 - 00;15;36;29
Judge Childers
There is a constant tension and there's no question about that. With the two schools of thought that are we need to use the precise language at the Court of Appeals has given us and again, the Court of appeals rights for judges. They don't write for laypeople. And, and we've actually got some Court of Appeals judges on our committee.

00;15;37;01 - 00;15;41;00
Judge Childers
So, so we enlist their help with this argument as well.

00;15;41;00 - 00;15;59;17
Host
So it's funny you should mention that, Mr. Day, because at the committee's meeting this week, one thing that stood out to me was that Judge Corallo had introduced a new instruction that had come from the Court of Appeals, and then through a process of about 15 minutes, we should have had 5 or 6 different suggestions to change that instructions.

00;15;59;17 - 00;16;17;21
Host
And his position was more he actually one of his comments was, get every change we do. We're getting further and further from the exact language of the Court of Appeals. But they started to change pro little pro se litigant to self represented litigant and then just tweak after tweak after tweak. So that little language started from the Court of Appeals.

00;16;17;21 - 00;16;22;22
Host
But then by the end, I think there was probably 6 or 7 different amendments to that.

00;16;22;22 - 00;16;29;05
Judge Childers
I had actually made a suggestion, and that's when he said, well, we're getting away from the language of the Court of Appeals now.

00;16;29;12 - 00;16;48;21
John Day
So you see what? That's one school of thought. Judge Kalu has been in that school for many years, and there are others. And we go back and forth. The I wanted to mention that same point was the legal cause argument. Judge Childers alluded to that a couple minutes ago, and.

00;16;48;24 - 00;16;49;17
John Day
He.

00;16;49;20 - 00;17;15;19
John Day
He did not intentionally glossed over the history. It took 5 or 6 years to get that done. And it was the suggestion of Judge Turnbull on Livingston, Tennessee, who who helped bring us along. We were the committee was ahead of the appellate courts in that regard. The appellate courts were still using and to this day still occasionally use the word proximate cause.

00;17;15;21 - 00;17;23;06
John Day
But we brought legal cause into the discussion, and it was a good thing.

00;17;23;09 - 00;17;44;00
Judge Childers
I'll give you a little inside baseball information on that. I actually call Don Payne, Professor Payne, who is now deceased, who was so helpful to us. And I ask his opinion because he's like the expert, the professor. And I said, Don, what do you think about us changing the word proximate in the jury instructions to the legal cause?

00;17;44;00 - 00;18;03;19
Judge Childers
And, he said, is the definition going to be the same? And I said, absolutely. He said, I don't see any problem at all with it. So that was part of the ammunition that I took to the committee meetings to try to convince the were conservative among our committee that we need to make this change to help jurors understand the instructions.

00;18;03;19 - 00;18;05;25
Judge Childers
Else why do you give the instructions?

00;18;05;27 - 00;18;16;16
John Day
Well, and the problem is this if they get one goofy word like proximate, that's a goofy word, they're going to be thinking about the goofy word and not listening to the substance of the charge.

00;18;16;16 - 00;18;17;04
Judge Childers
Precisely.

00;18;17;04 - 00;18;30;17
John Day
So it is our our job, I think, to put truly put the cookies on the low shelf to help give people stuff they can actually use and won't get hung up on technicalities.

00;18;30;19 - 00;18;41;08
Host
So besides the actual language of the ink or the actual language of the instruction, there's also comments in use notes. So judge Shoulders, when were those added and how have they evolved?

00;18;41;10 - 00;19;32;05
Judge Childers
The comments came from the start. A lot of the instructions that the original committee used. Judge Swigert informed me some of the history, came from the California pattern instructions. There were other states who already had pattern instructions, and so a lot of them came from California, from New York. And so, they used comments and the and the and the purpose of the comments, Barbara, is really to lift language from appellate court decisions that come out that are then helpful to, to the judges and lawyers in, in a case where you can't put everything that you possibly need in a particular factual situation, a particular case in a pattern instruction, it's not

00;19;32;05 - 00;19;52;18
Judge Childers
a one size fits all kind of thing. And so so it's helpful to judges. I did it myself in, in a if I had a particular factual, situation in a, in a case, I could look at the comments and maybe use some language from one of those comments to put into the pattern instruction, to modify it to fit the facts of my case.

00;19;52;20 - 00;20;17;21
Judge Childers
The use notes, on the other hand, and John and I yeah, we had debates about what's the difference between a use note and a comment. Comments, generally speaking, are language that come from the cases that are decided by the appellate courts, either immediate or. The Supreme Court used notes on the other hand, to me are for the use of the trial judges primarily when they have a case to say, okay, here's a heads up.

00;20;17;24 - 00;20;43;13
Judge Childers
You need to use this in a certain way. Or if you if you have a certain factual situation, you might want to look at at section 22.55, you know, and give that as well. And it's just again, sort of a heads up to the trial judge or lawyers, but to me, mostly for the trial judge use in, in, in how to use that pattern instruction.

00;20;43;15 - 00;21;19;10
John Day
Yeah. And it's we have been, consistently inconsistent in what we've labeled use notes and what we label comments, although we've gotten better in the last decade or so, we've tried to pay more attention to it, but it's it's once again, it's all designed to help the people who are using the book. The comments can be particularly helpful to lawyers and judges who use the book in the second way, in which it was intended, not just for jury instructions, but also as you're putting a case together from the standpoint of a lawyer, what's the law going to be at the end of the case?

00;21;19;10 - 00;21;29;14
John Day
What are the elements of the course of action? What are the leading cases in the field so lawyers can go there and see, do a little get a head start on the research.

00;21;29;14 - 00;21;50;06
Judge Childers
And that's it's a good research tool. Exactly. It can save you a whole lot of time. Judges particularly who a lot of them across the state don't have law clerks. I had the benefit of a of a third year law student, 20 hour a week law clerk in Shelby County. But most judges across the state don't have the use of law clerks and the judges doing the research.

00;21;50;08 - 00;21;56;25
Judge Childers
And so, again, that's why we put comments in there to help the judge to save time and save a lot of work.

00;21;56;27 - 00;22;04;22
Host
So how do you decide when a decision comes out, whether you need to actually change the instruction or just adjust a comment or a use note?

00;22;04;22 - 00;22;24;22
Judge Childers
So the judge who has that, that, part of the Southwest third and makes that report and suggests that this is a comment from this case that the the committee needs to look at and discuss. And so part of those three hours worth of meetings come in with the discussion about this comment and whether or not it adds something that we don't already have in the book.

00;22;24;24 - 00;22;43;18
Judge Childers
You know, you could put hundreds of of comments of citations to cases in. And so we try to get the leading cases on the areas. And if there's a case that comes out with something just a little bit unusual that we don't already have covered in the comments, then we'll vote and we'll put the comment in. We need to add this.

00;22;43;18 - 00;22;45;20
Judge Childers
It's important and we don't have it already in the book.

00;22;45;26 - 00;23;11;24
John Day
But if the law is changed, then we will rewrite the instruction to make it consistent with the current law. So it's it's, quite frankly, that happens relatively rarely. I mean, only several times a year. Is there a true change in substantive law that requires a modification of the instruction itself? But there's always a tweak, there's always a special circumstance.

00;23;11;24 - 00;23;14;17
John Day
And then that's the case. It goes to the comments.

00;23;14;19 - 00;23;29;26
Host
So let's talk a little bit about actually using using the instructions as a tool. So Mr.. Jamie you're practicing attorney. So when do you recommend that attorneys open the instructions in a case.

00;23;29;28 - 00;23;51;21
John Day
If you don't know the law, then you need to look at the law before you accept representation in the case, particularly if you're working on a contingent fee, that is, you only get paid if you win. But those of us who do, I mean, I do plaintiff's personal injury work. I have a pretty good grasp on the law.

00;23;51;24 - 00;24;18;29
John Day
I don't need to look at the pattern jury instructions on personal injury law. But if I was taking a case in, let's say it involved Bill Mintz, or involve some sort of contract issue, I would start there to give me a head start on more comprehensive legal research. That's the the idea is in most legal research, how do you grab on to, of hand hold what?

00;24;18;29 - 00;24;26;19
John Day
Is there something you can get into the substantive law and that's what the comments to the, charges, do. It gives you a head start.

00;24;26;21 - 00;24;32;27
Host
So when you're writing your pleadings from the beginning, you're thinking about the jury instructions that will be given at the very end of the trial?

00;24;33;03 - 00;24;51;20
John Day
You better be or you'll never get to the end of the trial. Do you see what I'm saying? If you don't understand substantive law and this is a this is something I speak about quite a bit, that the rules of the game are substantive law and policy and procedures. Right. The rules of civil procedure, the rule of evidence.

00;24;51;20 - 00;25;00;19
John Day
You've got to understand those things, when you accept a case and when you're going through the litigation process, because if you don't, you will get tripped up.

00;25;00;26 - 00;25;38;25
Judge Childers
John won't tell you this, but but he reads the advance sheets and the rules of procedure and rules of evidence for fun. That's his idea of fun. So he knows the law. But I've done hundreds. Yeah, probably no exaggeration. In 33 years as a judge, hundreds of seminars on jury instructions and what I have always told lawyers, young lawyers and more experienced lawyers is any case you get in your office, you need to start, in my judgment, my suggestion with the pattern jury instructions to tell you what you need to prove in your case, either in a bench trial to the judge or in a jury trial.

00;25;38;28 - 00;25;57;28
Judge Childers
That's the place to start. If you want to save yourself a lot of time and a lot of headache, and maybe taking on a case that you don't need to take on because it's a losing case is to start with the pattern jury instructions, which is going to tell you exactly what you need to prove in. And again, either a bench trial or a jury trial at the end of the day.

00;25;57;28 - 00;26;10;05
Judge Childers
So you start from the beginning. There. And it just again, it's, it's it's a shortcut. It saves you so much time and effort in research. If you start with those pattern instructions, it's amazing.

00;26;10;11 - 00;26;21;19
Host
So our different jury instructions that the committee has developed are they sort of developed to give be given at different times throughout the trial. And what's your advice on that? When should judges be giving jury instruction.

00;26;21;19 - 00;27;00;26
Judge Childers
Well, typically the judge gives simple instructions before the trial begins. So the jury sort of understands how the what the process is going to be, how the procedure is. Now the last five or probably ten years I was on the bench, I started giving some substantive instructions in the preliminary instructions at the beginning, so the jury would understand from the beginning what it is we're going to be asking them to look for during the course of the trial, rather than the way we always did it, giving it all to them at the end and telling them, ladies and gentlemen, this is what you were supposed to be looking for during the trial.

00;27;00;29 - 00;27;02;19
Judge Childers
It's sort of like being in school.

00;27;02;22 - 00;27;13;10
Host
And that's a trend that we're seeing really is more substantive instructions up front. So they have an idea of what to look for. Have you ever been in a trial, Mr. Day? You've ever asked for more substantive?

00;27;13;12 - 00;27;37;11
John Day
Well, yes. And and judges are going more and more that way and I applaud it. I mean, it's it's crazy to send people down the road without a roadmap. Why would you do that? So let's give them a roadmap. The the argument to the contrary always was when we don't know what the jury is going to be charged by way of the law until the end of the case, if that was ever true.

00;27;37;14 - 00;27;48;14
John Day
It's certainly not true with the advent of the rules of civil procedure. I mean, it just you're going to know 95 or 99% of the instructions that need to be charged before the jury's impaneled.

00;27;48;20 - 00;27;56;07
Host
So if you don't if the judge doesn't normally say that that's not his practice or it's just he's not doing it right now, would you request it?

00;27;56;10 - 00;28;08;03
John Day
Yeah. You could just do a special request if you have a pretrial conference. That's the place to do it. And most judges now are beginning to understand the importance of giving the jury that roadmap.

00;28;08;03 - 00;28;26;26
Judge Childers
Our, ends of court chapter in Memphis. This was 20 years ago. I think it was the American Board of Trial Advocates who put out a video, showing a professor in a classroom setting coming in and saying, okay, listen, gentlemen, with this class is going to be involved. You're not going to be able to take any notes.

00;28;26;29 - 00;28;46;04
Judge Childers
We're not going to tell you anything about the process or procedure. And at the end, we're going to ask you a series of questions. You can ask any questions during this class. And so we're going to tell you we gave you the test questions at the end. And the same thing we have required of juries for I call it rule 50.

00;28;46;04 - 00;29;04;04
Judge Childers
We've done it that way 50 years and we don't want to change. And it's, it's more of educating the jury now on the front end from the beginning of the process about what your job is, what your task is leading, gentlemen, and this is what you're going to have to do at the end of the case, and this is what you need to look for.

00;29;04;10 - 00;29;25;18
Judge Childers
And so those listening to to us today, I encourage you, particularly judges, to consider giving some substantive instructions at the beginning, along with your preliminary instructions and by all means, for the lawyers, please ask your judge if your judge doesn't do that and ask your judge. Judge, we'd like for you to give these. And normally the parties can agree.

00;29;25;18 - 00;29;45;00
Judge Childers
Both sides can agree, on what preliminary instructions are of the basic negligence, instructions about what negligence is and compared to fault and what that consist of in medical malpractice cases. I would give most of the medical malpractice instructions, at the end of my preliminary instructions before we start the case, before we start the trial.

00;29;45;02 - 00;30;00;27
Host
So what do you do if especially if you're an attorney, Mr. Day? And one of the instructions just don't seem to fit. You don't like the instruction? It doesn't seem to fit the facts. Your case. Well, there's a little nuance to your case. How do you approach a judge about making an adjustment to instructions?

00;30;00;29 - 00;30;28;09
John Day
Well, either in the pretrial order or by practice in that court, there is a time for submission of what we call special requests for instructions. And the prudent lawyer understands what those deadlines are and then submits to the judge, numbered requests, one through whatever it is that set forth, the proposed instruction or a deviation from the pattern or instructions.

00;30;28;09 - 00;30;53;23
John Day
So, for instance, one thing you may do is, state the instruction as written in the book and then do, through the the red lining procedure, show what words you've changed, and then attach, authority for why you're asking for the change. So you give the judge the law on why the change is necessary. And if you're coming up with an instruction out of whole cloth, that is, it's not in the book.

00;30;53;25 - 00;31;18;06
John Day
You do the same thing. You give the judge the law. And then some time before the jury instructions, before there's a charge conference and the lawyers debate with the judge, have a pleasant conversation about what's in and what's out. And the judge, makes the decision. And then you've created a record. The law has created a record for appellate court review.

00;31;18;08 - 00;31;22;20
Host
Judge Childers, which instructions are most commonly negotiated?

00;31;22;22 - 00;31;48;16
Judge Childers
Negotiated? You know that that's so, in fact, specific that it's it's hard to say, you know, in a, in a, in a, a typical fender bender car wreck case, I call it, you know, you're going to give, negligence if it's a compare fault case negligence and proximate cause or legal cause, is what makes up compared to fault negligence in legal cause.

00;31;48;18 - 00;32;12;28
Judge Childers
Sometimes in, in, product liability cases where you've got several different claims, you've got, you've got breach of warranty, you got strict liability and that sort of thing with the more complex cases, you sometimes get, a lot of debate between the lawyers about whether you should give this charge or that charge, or what the language should be, or whether it should be different from the pattern charges and that sort of thing.

00;32;13;00 - 00;32;32;01
John Day
As the dollar value of the case increases and the complexity of the, the legal issues increase, so do the number of special requests for jury. Correct. So in a in a products liability case involving one of the automobile manufacturers, there will be 25 or 30 from each party.

00;32;32;01 - 00;32;49;22
Judge Childers
I've had as many as 50 or 60, no exaggeration. In cases like that that I have to consider. And I make the, I make the lawyers give them to me toward the beginning of the case. So I have time during the trial to to look at those and review those and sort of decide which ones in my mind that I'm probably going to give.

00;32;49;26 - 00;33;02;09
Judge Childers
And then I have the charge conference at the end. After all that proof is in after we send the jury out, let the lawyers argue as much as they want to about charges and then the judge makes the decision, the ultimate decision on which, once again.

00;33;02;09 - 00;33;11;19
Host
So what's your advice to judges on actually giving the jury instructions, like orally versus written versus hand. Like what are your tips there?

00;33;11;22 - 00;33;38;09
Judge Childers
I've read lots of articles about your about well, about, about general people in general, their comprehension levels, people get absorbed and comprehend about 20% of what they hear. So so I started at reading instructions. In 2002, the Tennessee Bar Association asked, ten of us, ten judges across the state, and I was one of the judges who participated in a jury reform project, they called it.

00;33;38;11 - 00;34;15;08
Judge Childers
And we experimented with a bunch of new procedures that had never been used in Tennessee. The most interesting one was letting jurors ask questions of witnesses, use of jury notebooks, and several of the instructions, the way we select jurors, the board, our process, and that sort of thing. And so, the purpose of it was to get jurors, more engaged in the process and hopefully have jurors reach a more informed decision where at least they understood the evidence and their duties and came back with a more, start out saying a better decision.

00;34;15;08 - 00;34;48;13
Judge Childers
But better is in the eye of the beholder, whether you're playing for a defendant. But a more informed decision, I think, is what everybody wants, where the jury understands the evidence of what they're their jobs, their responsibilities are in the cases. And so that was always my goal. The other goal of that was to save the time that jurors who give, citizens who give us their time in serving on juries, I told the lawyers at the beginning of the trial, and in complex cases, always have a pretrial conference to go over the ground rules.

00;34;48;15 - 00;35;06;12
Judge Childers
And I would tell them, if you've got objections to depositions, don't don't wait until the next morning to tell me, oh, judge, we've got some objections to take up. Tell me the night before, and we'll either stay late and let the jury go home, or I'll let the jury come in a little later in the morning, and we'll take them up first thing in the morning.

00;35;06;15 - 00;35;29;07
Judge Childers
So we don't have the jury back in the jury room, waiting for the judge and the lawyers to go through all these things where we make more effective use of the jurors times. And I'm telling you, the jurors really appreciate when lawyers and judges do that. And so, so the the charge conference and all that sort of thing is trying to make it more efficient for the jurors.

00;35;29;09 - 00;35;44;16
Judge Childers
And where when they're in the courthouse, they're in the jury box, for the most part, hearing the evidence and deciding the cases. And to me, again, the instructions making them more understandable and clear to the jury is a very important part of that process.

00;35;44;18 - 00;36;04;22
John Day
I think it was about 2000 or so that judges in the state started putting the, instructions on a screen, if I remember right. Wasn't that Judge Turnbull and Judge Maddox over in Cookeville, who started doing that? They would literally come off the bench and we had the acetate with overhead projectors.

00;36;04;26 - 00;36;08;29
Judge Childers
The the overheads are that. Yes. Yeah. The overheads. Yeah.

00;36;09;00 - 00;36;10;09
John Day
And you did that too.

00;36;10;14 - 00;36;34;06
Judge Childers
Well, I did a part of the process from the 2002 experiment and then about six months, we did it for six months. And then the TVA approached the Supreme Court. And in most of those new procedures were incorporated into the rules of procedure. They're not mandatory. The judges, they're discretionary. Judges can use them or not. And I continue to use all of the the instructions, all of the, the changes.

00;36;34;13 - 00;36;57;19
Judge Childers
But what I first did with the experiment, I would give one written copy of the instructions to the jury at the end. I very quickly went to three copies for the jury, and just as quickly I went to one copy for each of the 12 jurors, because some people are afraid they don't read as quickly or some can't read very well at all who were embarrassed to want to look at the instructions again.

00;36;57;19 - 00;37;15;05
Judge Childers
So they have their own copy. And I gave them, at the end of the case. I gave them at the beginning a copy of the preliminary instructions in their notebook, and then at the end, a copy of the final instructions in their notebook so they could take all that back with them and look at the instructions, at the end.

00;37;15;08 - 00;37;42;03
Judge Childers
And so, so I, I gave them each a copy of the written instructions as I gave them so they could read through the instructions as I gave them, because the comprehension goes up from 20% from just hearing to it's closer to 50% when they both hear it and read it. And, and then the other part that's hard to accomplish is when the jury gets involved with it's hard to get involve the jury.

00;37;42;03 - 00;37;55;29
Judge Childers
Other than having them read the instructions, but the comprehension level. And then when you multiply that by 12 jurors, you have most of the jurors, you know, individually can get sort of the whole picture of what happened in a case.

00;37;55;29 - 00;38;04;25
Host
So let's talk about the upcoming edition. Fall of 2019. We'll have a new edition of the Civil Pattern Jury instructions. What sort of changes should we expect?

00;38;04;28 - 00;38;32;18
Judge Childers
Well, one of the changes that we debated in our in our, meeting this week at the Judicial conference, was a new charge on, self represented litigants. And we used to call them pro se. But the new term is self represent represented litigants. And to give a charge to the jury about, essentially, the court will give some leeway to self represented litigants because they're not trained in the law.

00;38;32;19 - 00;39;10;14
Judge Childers
But ladies and gentlemen, you need to understand that the self represented litigants have to comply with the substantive law, just like the other side who has the lawyer does. So you have to be careful about not bending over backwards to be fair to the self represented person, to the point that you're then unfair to the other side. One of the other things that I will tell you several years ago that we did with the advent of social media, we the committee came up with a charge cautioning the jury that you can't consult social media, you can't Google, terms that you hear about or evidence that you hear about in a trial, and you

00;39;10;14 - 00;39;28;24
Judge Childers
can't get information outside of what you hear in the courtroom, in the trial, and you have jurors wanting to Google and that sort of thing. And so we had to develop a charge that we give at the beginning. I gave it the beginning of the trial. And at the end, you can't use the sources to decide this case.

00;39;28;26 - 00;39;49;02
John Day
And you were there, Barbara, for part of the debate at the committee meeting earlier this week. You know, we had an issue that came up in the health care liability area with a recent decision out of the Court of Appeals and a recent Tennessee Supreme Court, opinion in the Dedman case. And concerning collateral, the collateral source rule.

00;39;49;04 - 00;40;17;25
John Day
And that was a classic example. You got to see something that happens quite frequently, where we all agree that we don't know what the law is. So but that's hard for laypeople to understand that, that, particularly, in the common law, but an even more so when the legislature starts to attempt to supplant the common law by adopting legislation, and because they have to use the English language, things aren't always necessarily clear.

00;40;17;27 - 00;40;24;18
John Day
We we have to agree that we don't know what the law is, and we communicate that through, the comments or the use notes.

00;40;24;20 - 00;40;48;06
Judge Childers
And we've we've had lots of discussion and debate and there is a tension here, but the committee has always pretty much come down on the side of we're not trying to the committee's not in through the instructions, trying to predict what the Tennessee law is. What we try to do is take the opinions from the courts and look at statutes and determine what the current Tennessee law is.

00;40;48;06 - 00;41;05;28
Judge Childers
If there's not any law on that subject, we try to be careful not to predict what the law is going to be. We try to say what the law is as we understand it through the court opinions, the appellate court opinions and the statutory law. And that's all we try to do. But we've had lots of discussions back and forth about now.

00;41;05;29 - 00;41;15;00
Judge Childers
We need we need to try to predict what the law is to help the trial judge in the bar, in the state. But we try we try to be careful not to do that.

00;41;15;02 - 00;41;19;13
Host
Well, just Childers, Mr. John Day, thank you both for joining us at Tennessee Court.

00;41;19;13 - 00;41;20;18
Judge Childers
Talk a pleasure.

00;41;20;26 - 00;41;27;18
John Day
Enjoyed it very much. Thank you.