The following comparison looks at California's old civil instructions (known
as BAJI) and new instructions approved (in July 2003) by the Judicial Council
of California. For now, at least, judges are free to use either the
traditional instructions or the new ones. Incidentally, for some unknown
reason I am a member of the criminal committee of the task force on jury
instruction (my legal expertise is mainly in civil law), not the civil committee
which produced these instructions. But I have worked with members of
the civil committee and have provided them with comments on their instructions,
so I may have had some modest contribution to the ultimate product.
I have tried to give a selection of instructions that
might, roughly speaking, be used in an actual negligence trial. I did
not, however, add instructions on damages and concluding instructions that
would normally come at the end of the charge.
BAJI 1.00. Respective Duties of Judge and Jury
Ladies and Gentlemen of the Jury:
It is now my duty to instruct you on the law that applies to this case. It
is your duty to follow that law.
As jurors it is your duty to determine the effect and value of the evidence
and to decide all questions of fact.
You must not be influenced by sympathy, prejudice or passion.
There is no new instruction that parallels it in the introductory
series, but there is one that comes towards the end of the seriesand allows
for a closer comparison of the language. Notice that sometimes the
new instructions are somewhat longer than the old ones. The old ones
have an economy of style that has a certain appeal, but which do not help
Comment: This introductory instruction is not bad in terms
New instruction No. 5000
Duties of the Judge and Jury
Members of the jury, you have now heard
all the evidence [and the closing
arguments of the attorneys]. [The attorneys will have one last chance to
talk to you
in closing argument. But before they do, it] [It] is my duty to instruct
you on the law
that applies to this case. You will have a copy of my instructions with you
go to the jury room to deliberate. [I have provided each of you with your
of the instructions.] [I will display each instruction on the screen.]
You, and only you, must decide what the facts are. You
must consider all the
evidence and then decide what you think really happened. You must decide
based on the evidence admitted in this trial. You must not let bias, sympathy,
prejudice, or public opinion influence your decision.
I will now tell you the law that you must follow to reach
your verdict. You must
follow the law exactly as I give it to you, even if you disagree with it.
If the attorneys
have said anything different about what the law means, you must follow what
[rest of instruction omitted]
BAJI 1.01. Instructions to Be Considered as a Whole
If any matter is repeated or stated in different ways in my instructions,
no emphasis is intended. Do not draw any inference because of a repetition.
Do not single out any individual rule or instruction and ignore the others.
Consider all the instructions as a whole and each in the light of the others.
The order in which the instructions are given has no significance as to their
Comment: Again, this instruction has a rather turgid style
typical of so many existing instructions (not just in California!). Note
that the judge uses the passive voice quite a bit: "is repeated" or "is intended"--it
is the judge (or instructions) who repeats and does not intend emphasis,
so why not just say "if I repeat an instruction or say it in a different
way, that does not mean that I intend to emphasize it over other instructions."
And that third paragraph--why not just say that the order does not
The new version (part of instruction No. 5000) is, once
again, considerably more fluent:
Pay careful attention to all the instructions that I give
you. All the instructions are
important because together they state the law that you will use in this case.
must consider all of the instructions together....
If I repeat any ideas or rules of law during my instructions, that does not
these ideas or rules are more important than the others are. In addition,
the order of
the instructions does not make any difference.
BAJI 1.02. Statements of Counsel--Stipulation
to a Fact--Evidence Stricken Out--Insinuations of Questions
Statements of counsel are not evidence; [however, if counsel have stipulated
to a fact,] [or] [a fact has been admitted by counsel,] accept that fact as
having been conclusively proved.]
Do not speculate as to the answers to questions to which objections were
sustained or the reasons for the objections.
Do not consider any evidence that was stricken; stricken evidence must be
treated as though you had never known of it.
A suggestion in a question is not evidence unless it is
adopted by the answer. A question by itself is not evidence. Consider it
only to the extent it is adopted by the answer.
Comment: That second paragraph is quite something,
containing several levels of embedding. The word stricken is
also a bit odd--usually it means that someone got an awful disease (she was
stricken by smallpox). And since when do answers adopt questions?
Below is the equivalent language from the new instructions. Again,
it is longer than the terse and almost poetic statements of the old instructions,
but the language is also substantially more informative, it seems to me:
New Instruction No. 106
[first paragraphs omitted]
The attorneys’ questions are not
evidence. Only the witnesses’ answers are evidence.
You should not think that something is true just because
an attorney’s question
suggests that it is true. However, the attorneys for both sides can agree
facts are true. This agreement is called a stipulation. No other proof is
you must accept those facts as true in this trial.
Each side has the right to object to evidence offered
by the other side. If I do not
agree with the objection, I will say it is overruled. If I overrule an objection,
witness will answer and you may consider the evidence. If I agree with the
I will say it is sustained. If I sustain an objection, you must ignore the
the witness did not answer, you must not guess what he or she might have
why I sustained the objection. If the witness has already answered, you must
Sometimes an attorney may make a motion to strike testimony
that you have heard.
If I grant the motion, you must totally disregard that testimony. You must
treat it as
though it did not exist.
BAJI 2.00. Direct and Circumstantial Evidence--Inferences
Evidence consists of testimony, writings, material objects or other things
presented to the senses and offered to prove whether a fact exists or does
Evidence is either direct or circumstantial.
Direct evidence is evidence that directly proves a fact. It is evidence
which by itself, if found to be true, establishes that fact.
Circumstantial evidence is evidence that, if found to be true, proves a
fact from which an inference of the existence of another fact may be drawn.
A factual inference is a deduction that may logically and reasonably be
drawn from one or more facts established by the evidence.
It is not necessary that facts be proved by direct evidence. They may be
proved also by circumstantial evidence or by a combination of direct and circumstantial
evidence. Both direct and circumstantial evidence are acceptable as a means
of proof. Neither is entitled to any greater weight than the other.
: This sounds like something written by
a German philosopher around two centuries ago and directly translated into
English. How many people today talk about presenting evidence to the
senses? Is that what you do when you smell a rose or, for that matter,
when you see someone rob a bank? Also, most people don't talk much
about drawing inferences, even though they do so every day. Some examples
would be very helpful.
New Instruction No. 202
Direct and Indirect Evidence
Evidence can come in many forms.
It can be testimony about what someone saw or
heard or smelled. It can be an exhibit admitted into evidence. It can be
Some evidence proves a fact directly, such as testimony
of a witness who saw a jet
plane flying across the sky. Some evidence proves a fact indirectly, such
testimony of a witness who saw only the white trail that jet planes often
indirect evidence is sometimes referred to as “circumstantial evidence.”
instance, the witness’s testimony is evidence that a jet plane flew across
As far as the law is concerned, it makes no difference
whether evidence is direct or
indirect. You may choose to believe or disbelieve either kind. Whether it
is direct or
indirect, you should give every piece of evidence whatever weight you think
BAJI 2.60. Burden of Proof
and Preponderance of Evidence
Plaintiff is seeking damages based upon [a] claim[s] of _______ _______.
Plaintiff has the burden of proving by a preponderance of the evidence all
of the facts necessary to establish:
[The essential elements of [each separate] [the] claim. The essential elements
of [the] [each separate] claim [is] [are] set forth elsewhere in these instructions.
In addition to these essential elements, plaintiff has the burden of proving
by a preponderance of the evidence all of the facts necessary to establish
the nature and extent of the [damages] [injuries] claimed to have been suffered,
the elements of plaintiff's damage and the amount thereof.]
The defendant has the burden of proving by a preponderance of the evidence
all of the facts necessary to establish:
"Preponderance of the evidence" means evidence that has more convincing
force than that opposed to it. If the evidence is so evenly balanced that
you are unable to say that the evidence on either side of an issue preponderates,
your finding on that issue must be against the party who had the burden of
You should consider all of the evidence bearing upon every issue regardless
of who produced it.
These are all very important points.
Who bears the burden of proof can be critical, and there is research
suggesting that jurors often poorly understand or confuse standards like
preponderance of the evidence and proof beyond a reasonable doubt. The
actual definition in BAJI 2.60 starts off pretty well by stating that the
evidence must have more convincing force
than the opposing evidence.
But the next sentence is pretty bad, especially the use of the word
Here is the new version. Note
that is states the issue clearly--whether something is more likely than
, a phrase we encounter quite commonly. Using this formulation allows
us to avoid the term preponderance
entirely. The instruction
also does something that can sometimes be useful for jurors: it addresses
a possible areas of confusion head-on by distinguishing this standard from
the criminal standard:
New Instruction No. 200
Obligation to Prove—More Likely True Than Not True
When I tell you that a party
must prove something, I mean that the party must
persuade you, by the evidence presented in court, that what he or she is
prove is more likely to be true than not true. This is sometimes referred
to as “the
burden of proof.”
After weighing all of the evidence, if you cannot decide
whether a party has satisfied
the burden of proof, you must conclude that the party did not prove that
should consider all the evidence that applies to that fact, no matter which
produced the evidence.
In criminal trials, the prosecution must prove facts showing
that the defendant is
guilty beyond a reasonable doubt. But in civil trials, such as this one,
the party who
is required to prove a fact need only prove that the fact is more likely
to be true than
The plaintiff _______ [also] seeks to recover damages based upon a claim
The essential elements of this claim are:
1. The defendant was negligent;
2. Defendant's negligence was a cause of
[injury] [damage] [loss] [or] [harm] to plaintiff.
BAJI 3.76. Cause--Substantial Factor Test
After all these preliminary matters,
we finally get to the elements of the cause of action. The most basic
cause of action is negligence, and the BAJI instruction states the basic
elements understandably enough, it seems to me. For purposes of comparison,
here is the new version. One small point is that the BAJI instruction
seems to me to collapse what are really two elements: that the plaintiff
was harmed and that the defendant caused that harm. You will observe
that these are indeed two elements in the new instruction:
New Instruction No. 400
Essential Factual Elements
[Name of plaintiff]
claims that [he/she] was harmed by [name of defendant]’s
negligence. To establish this claim, [name of plaintiff] must prove all of
1. That [name of defendant] was negligent;
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s negligence was a substantial
factor in causing [name
of plaintiff]’s harm.
Just because [name of plaintiff] was harmed does not,
by itself, mean that [name of
defendant] is legally responsible for the harm.
BAJI 5.50. Duty
of Motorists and Pedestrians Using Public Highway
The law defines cause in its own particular
way. A cause of [injury] [damage] [loss] [or] [harm] is something that is
a substantial factor in bringing about an [injury] [damage] [loss] [or] [harm].
There has been a huge amount
of litigation in California (and other states) on the definition of causation
in tort law. California's Supreme Court finally adopted what is known
as the substantial factor
test. If you go back to new instruction
400, directly above, you will see that the new instructions have incorporated
this instruction directly into the general negligence standard, rather than
saying that the defendant must have caused the harm in one instruction, and
defining causation in a later instruction. This strikes me as the sensible
thing to do--the less cross-referencing, the better.
Every person using a public street or highway, whether as a pedestrian or
as a driver of a vehicle, has a duty to exercise ordinary care at all times
to avoid placing [himself] [or] [herself] or others in danger and to use like
care to avoid an accident from which an injury might result.
[A "vehicle" is a device by which any person or property may be propelled,
moved, or drawn upon a highway [, excepting a device moved exclusively by
human power or used exclusively upon stationery rails or tracks].]
[A "pedestrian" is any person who is afoot or who is using a means of conveyance
propelled by human power other than a bicycle.] [The word "pedestrian" also
includes any person who is operating a self-propelled wheelchair, invalid
tricycle, or motorized quadrangle and, by reason of physical disability,
is otherwise unable to move about as a pedestrian, as earlier defined.]
: Holy Toledo! What in tarnation is an invalid tricycle
or motorized quadrangle
???? Moreover, afoot
is a lovely
term, but today is used mainly in a metaphoric sense (there was danger afoot).
And I imagine that most people would think that drawing upon a highway
involves leaving behind graffiti, not pulling or towing something. The
new version follows. Notice that the committee seems to have decided that
it is not necessary to define pedestrians. One other important point
is that the new instruction specifically ties this standard of care into
the issue that the jury has to decide (see basic negligence instruction)
by pointing out that breach of the standard is negligence. The BAJI
instruction does simply lays out the duty, but does not tell jurors that
a breach of this duty is negligence, satisfying the first element in a cause
of action for negligence.
New Instruction No. 700
Basic Standard of Care
A person must use reasonable care
in driving a vehicle. Drivers must keep a lookout
for pedestrians, obstacles, and other vehicles. They must also control the
movement of their vehicles. The failure to use reasonable care in driving
a vehicle is
BAJI 5.51. Amount of Caution Required in Ordinary Care--Driver and Pedestrian
This instruction is an elaboration on or explanation of the general
standard of care relating to motor vehicles. I generally believe that
it is a good idea for instructions to tell jurors why a particular
rule applies. Psychological studies have shown that people are more
likely to comply with an order if they understand its purpose, as opposed
to obeying what seem to be arbitrary commands. Yet here the explanation
for the rule does not seem all that important--anyone with any brains whatsoever
understands that cars are potential weapons of mass destruction in a way
that ordinary pedestrians are not. Thus, this is an example where the
language of the new instruction is much shorter than the old one:
New Instruction No. 710
While it is the duty of both the driver of a motor vehicle and a pedestrian,
using a public roadway, to exercise ordinary care, that duty does not necessarily
require the same amount of caution from each. The driver of a motor vehicle,
when ordinarily careful, will be alert to and conscious of the fact that in
the driver's charge is a machine capable of causing serious consequences if
the driver is negligent. Thus the driver's caution must be adequate to that
responsibility as related to all the surrounding circumstances. A pedestrian,
on the other hand, has only his or her own physical body to manage to set
in motion a cause of injury. Usually that fact limits the capacity of a pedestrian
to cause injury, as compared with that of a vehicle driver. However, in exercising
ordinary care, the pedestrian, too, will be alert to and conscious of the
mechanical power acting on the public roadway, and of the possible serious
consequences from any conflict between a pedestrian and such forces. The
caution required of the pedestrian is measured by the danger or safety apparent
to the pedestrian in the conditions at hand, or that would be apparent to
a person of ordinary prudence in the same position.
Duties of Care for Pedestrians and Drivers
The duty to use reasonable care
does not require the same amount of caution from
drivers and pedestrians. While both drivers and pedestrians must be aware
motor vehicles can cause serious injuries, drivers must use more care than
enough for now. The real question is what happens when these instructions
are used. I'll try to keep you updated.