Judges, Lawyers and Jurors - The Communication Gap

By John DiMotto

Yesterday in my blog I discussed the importance for a judge to fully prepare for a jury trial in order to take "good" control over the trial to ensure that it moves along efficiently and fairly. An important aspect of the preparation is to have understandable jury instructions and to make sure the lawyers present their cases in ordinary English.

It is easy to forget that the legalese lawyers and judges routinely use is often a foreign language for the jurors. What the jury is told by the lawyers in their presentation - voir dire questions, opening statements, closing arguments and presentation of the evidence, particularly expert testimony, will only have an effect if it is understood by the jurors. What the jury is told by the judge in terms of their service and law in the judge's presentation - comments to the jury panel during voir dire, opening instructions before opening statements, final instructions, will only be effective if it is understood.

In Wisconsin, the judiciary has three Jury Instructions Committees. Criminal, Civil and Juvenile. These committees have the responsibility to meet regularly to discuss changes in the law and draft standard instructions to be used as a template by judges. At times the standard instructions must be modified or tweaked to meet the demands of the case and evidence, but for the most part they are used statewide. Use of these instructions ensures uniformity statewide.

I was a member of the Wisconsin Criminal Jury Instructions Committee for ten years. I was its Chair for my last two years. During my time on the Committee, thanks to the guidance of our Committee Reporter, David Schultz, we adopted a "Plain Language" approach to writing jury instructions. We worked to eliminate much of the legalese that created havoc with the jurors. We wrote, or rewrote instructions in common sense, ordinary English that ordinary, nonlegal people - jurors - could understand. This approach has also been adopted by the Civil and Juvenile Committees.

Because of my tenure on the Criminal Jury Instructions Committee, I am sensitive to the need to use language in my communication with jurors that they will understand and I encourage lawyers to do the same. If judges and lawyers do not factor in their use of language during a jury trial, they do a disservice to the litigants, witnesses, community and the jurors. The Communication Gap must be bridged in every case.