**IN THE UNITED STATES DISTRICT COURT**

**FOR THE WESTERN DISTRICT OF TENNESSEE**

**WESTERN DIVISION**

> Plaintiff,

 vs.                                                                                                       
No.  

> Defendant.

**PROPOSED JURY INSTRUCTIONS**

71-2

You have now heard all of the evidence in the case as well as the final
arguments of the lawyers for the parties.

My duty at this point is to instruct you as to the law. It is your duty
to accept these instructions of law and apply them to the facts as you
determine them, just as it has been my duty to preside over the trial
and decide what testimony and evidence is relevant under the law for
your consideration.

On these legal matters, you must take the law as I give it to you. If
any attorney has stated a legal principle different from any that I
state to you in my instructions, it is my instructions that you must
follow.

  You should not single out any instruction as alone stating the law,
but you should consider my instructions as a whole when you retire to
deliberate in the jury room.

  You should not, any of you, be concerned about the wisdom of any rule
that I state. Regardless of any opinion that you may have as to what the
law may be \-- or ought to be \-- it would violate your sworn duty to
base a verdict upon any other view of the law than that which I give
you.

 

71-3

As members of the jury, you are the sole and exclusive judges of the
facts. You pass upon the evidence. You determine the credibility of the
witnesses.  You resolve such conflicts as there may be in the testimony.
You draw whatever reasonable inferences you decide to draw from the
facts as you have determined them, and you determine the weight of the
evidence.

Since you are the sole and exclusive judges of the facts, I do not mean
to indicate any opinion as to the facts or what your verdict should be.
The rulings I have made during the trial are not any indication of my
views of what your decision should be as to whether or not the plaintiff
has proven his case.

  As to the facts, ladies and gentlemen, you are the exclusive judges.
You are to perform the duty of finding the facts without bias or
prejudice to any party.

 

71-4

In determining the facts, you are reminded that you took an oath to
render judgment impartially and fairly, without prejudice or sympathy
and without fear, solely upon the evidence in the case and the
applicable law.

 

 

71-5

Your authority must be exercised with sincere judgment, sound
discretion, and in accordance with the rules of law which I give you. In
making your determination of the facts in this case, your judgment must
be applied only to that which is properly in evidence.

Arguments of counsel are not in evidence, although you may give
consideration to those arguments in making up your mind on what
inferences to draw from the facts which are in evidence.

From time to time the court has been called upon to pass upon the
admissibility of certain evidence, although I have tried to do so,
insofar as it was practicable, out of your hearing. You have no concern
with the reasons for any such rulings and you are not to draw any
inferences from them.

Whether offered evidence is admissible is purely a question of law in
the province of the court and outside the province of the jury. In
admitting evidence to which objection has been made, the court does not
determine what weight should be given to such evidence, nor does it pass
on the credibility of the evidence. Of course, you will dismiss from
your mind completely, entirely any evidence which has been ruled out of
the case by the court, and you will refrain from speculation or
conjecture or any guesswork about the nature or effect of any discussion
between court and counsel held out of your hearing or sight.

 

71-6

It is the duty of the attorney on each side of a case to object when the
other side offers testimony or other evidence which the attorney
believes is not properly admissible. Counsels also have the right and
duty to ask the court to make rulings of law and to request conferences
at the side bar out of the hearing of the jury. All those questions of
law must be decided by me, the court. You should not show any prejudice
against an attorney or his client because the attorney objected to the
admissibility of evidence, or asked for a conference out of the hearing
of the jury or asked the court for a ruling on the law.

As I already indicated, my rulings on the admissibility of evidence do
not, unless expressly stated by me, indicate any opinion as to the
weight or effect of such evidence. You are the sole judges of the
credibility of all witnesses and the weight and effect of all evidence.

 

71-9

Your verdict must be based solely upon the evidence developed at this
trial, or the lack of evidence.

It would be improper for you to consider any personal feelings you may
have about one of the parties\' race, religion, national origin, sex or
age.

It would be equally improper for you to allow any feelings you might
have about the nature of the claim against the defendant to influence
you in any way.

The parties in this case are entitled to a trial free from prejudice.
Our judicial system cannot work unless you reach your verdict through a
fair and impartial consideration of the evidence.

 

71-10

Under your oath as jurors you are not to be swayed by sympathy. You
should be guided solely by the evidence presented during the trial,
without regard to the consequences of your decision.

You have been chosen to try the issues of fact and reach a verdict on
the basis of the evidence or lack of evidence. If you let sympathy
interfere with your clear thinking, there is a risk that you will not
arrive at a just verdict. All parties to a civil lawsuit are entitled to
a fair trial. You must make a fair and impartial decision to that you
will arrive at a just verdict.

 

71-15

Your verdict must be based solely on the evidence presented in this
courtroom in accordance with my instructions. You must completely
disregard any report which you have read in the press, seen on
television, or heard on the radio. Indeed, it would be unfair to
consider such reports, since they are not evidence and the parties have
no opportunity of contradicting their accuracy or otherwise explaining
them away. In short, it would be a violation of your oath as jurors to
allow yourselves to be influenced in any manner by such publicity.

 

73-2

The party with the burden of proof on any given issue which has a
preponderance of the evidence standard has the burden of proving every
disputed element of his claim to you by a preponderance of the evidence.
If you conclude that the party bearing the burden of proof has failed to
establish his claim by a preponderance of the evidence, you must decide
against him on the issue you are considering.

What does a \"preponderance of evidence\" mean? To establish a fact by a
preponderance of the evidence means to prove that the fact is more
likely true than not true. A preponderance of the evidence means the
greater weight of the evidence. It refers to the quality and
persuasiveness of the evidence, not to the number of witnesses or
documents. In determining whether a claim has been proved by a
preponderance of the evidence, you may consider the relevant testimony
of all witnesses, regardless of who may have called them, and all the
relevant exhibits received in evidence, regardless of who may have
produced them.

If you find that the credible evidence on a given issue is evenly
divided between the parties \--that it is equally probable that one side
is right as it is that the other side is right \-- then you must decide
that issue against the party having this burden of proof. That is
because the party bearing this burden must prove more than simple
equality of evidence \-- he must prove the element at issue by a
preponderance of the evidence. On the other hand, the party with this
burden of proof need prove no more than a preponderance. So long as you
find that the scales tip, however, slightly, in favor of the party with
this burden of proof \-- that what they party claims is more likely true
than not true \-- then that element will have been proved by a
preponderance of the evidence.

Some of you may have heard of proof beyond a reasonable doubt, which is
the proper standard of proof in a criminal trial. That requirement does
not apply to a civil case such as this and you should put it out of your
mind.

 

74-1

The evidence in this case is the sworn testimony of the witnesses.

By contrast, the question of a lawyer is not to be considered by you as
evidence. It is the witnesses\' answers that are evidence, not the
questions.

Testimony that has been stricken or excluded is not evidence and may not
be considered by you in rendering your verdict.

Arguments by lawyers are not evidence, because the lawyers are not
witnesses. What they have said to you in their opening statements and in
their summations is intended to help you understand the evidence to
reach your verdict. However, if your recollection of the facts differs
from the lawyers\' statements, it is your recollection which controls.

Finally, statements which I may have made concerning the quality of the
evidence do not constitute evidence.

It is for you alone to decide the weight, if any, to be given to the
testimony you have heard and the exhibits you have seen.

 

74-2

There are two types of evidence which you may properly use in reaching
your verdict. One type of evidence is direct evidence. Direct evidence
is when a witness testifies about something he knows by virtue of his
own senses \--something he has seen, felt, touched, or heard. Direct
evidence may also be in the form of an exhibit where the fact to be
proved is its present existence or condition.

Circumstantial evidence is evidence which tends to prove a disputed fact
by proof or other facts. You infer on the basis of reason and experience
and common sense from one established fact the existence or
non-existence of some other fact.

Circumstantial evidence is of no less value than direct evidence; for,
it is a general rule that the law makes no distinction between direct
evidence and circumstantial evidence but simply requires that your
verdict must be based on a preponderance of all the evidence presented.

 

74-4

A stipulation of facts is an agreement among the parties that a certain
fact is true. You must regard such agreed facts as true.

 

76-1

You have had the opportunity to observe all the witnesses. It is now
your job to decide how believable each witness was in his or her
testimony. You are the sole judges of the credibility of each witness
and of the importance of his or her testimony.

It must be clear to you by now that you are being called upon to resolve
various factual issues raised by the parties in the face of very
different pictures painted by both sides. Someone is not telling the
truth and you must decide who that is. In making these judgments, you
should carefully scrutinize all of the testimony of each witness, the
circumstances under which each witness testified, and any other matter
in evidence which may help you decide the truth and the importance of
each witness\' testimony.

How do you determine where the truth lies? You watched the witness
testify. Everything a witness said or did on the witness stand counts in
your determination. How did the witness impress you? Did he appear to be
frank, forthright and candid, or evasive and edgy as if hiding
something? How did the witness appear; what was his demeanor \-- that
is, his carriage, behavior, bearing, manner and appearance while
testifying? Often it is not what a person says but how he says it that
moves us.

You should use all the tests for truthfulness that you would use in
determining matters of importance to you in your everyday life. You
should consider any bias or hostility the witness may have shown for or
against any party as well as any interest the witness has in the outcome
of the case. You should consider the opportunity the witness had to see,
hear, and know the things about which he testified, the accuracy of his
memory , his candor or lack of candor, his intelligence, the
reasonableness and probability of his testimony and its consistency or
lack of consistency and its corroboration or lack of corroboration with
other credible testimony.

In other words, what you must try to do is deciding credibility is to
size a witness up in light of his or her demeanor, the explanations
given and all of the other evidence in the case. Always remember that
you should use your common sense, your good judgment and your own life
experience.

 

77-1

If the plaintiff has proven by a preponderance of the credible evidence
that defendants are liable on the plaintiff\'s claim, then you must
determine the damages to which the plaintiff is entitled. However, you
should not infer that the plaintiff is entitled to recover damages
merely because I have instructed you on the amount of damages. It is
exclusively your function to decide upon liability, and I have
instructed you on damages only so that you will have guidance should you
decide that the plaintiff is entitled to recovery.

 

78-1

You are about to go into the jury room and begin your deliberations. Any
communication with the court \-- should always be made to me in writing,
signed by your foreperson, and given to one of the marshals. Do not tell
me or anyone else how the jury stands on any issue until after the
unanimous verdict is reached.

 

78-3

You will now return to decide the case. In order to prevail, the
plaintiff must sustain the burden of proof as I have explained to you
with respect to each element of his complaint. If you find that a
plaintiff has succeeded, you should return a verdict in his or her favor
on that claim.

It is your duty as jurors to consult with one another and to deliberate
with a view to reaching an agreement. Each of you must decide the case
for himself, but you should do so only after a consideration of the case
with your fellow jurors, and you should not hesitate to change an
opinion when convinced that it is erroneous. Your verdict must be
unanimous, but you are not bound to surrender your honest convictions
concerning the effect or weight of the evidence for the mere purpose of
returning a verdict or solely because of the opinion of other jurors.
Discuss and weigh your respective opinions dispassionately, without
regard to sympathy, without regard to prejudice or favor for either
party, and adopt that conclusion which in your good conscience appears
to be in accordance with the truth.

Again, each of you must make your own decision about the proper outcome
of this case based on your consideration of the evidence and your
discussions with your fellow jurors. No juror should surrender his
conscientious beliefs solely for the purpose of returning a unanimous
verdict.

 

78-5

When you retire, you should elect one member of the jury as your
foreperson. That person will preside over the deliberations and speak
for you here in open court.

 

78-6

After you have reached a verdict, your foreperson will fill in the form
that has been given to you, sign and date it and advise the marshal
outside your door that you are ready to return to the courtroom.

I will stress that each of you should be in agreement with the verdict
which is announced in court. Once your verdict is announced by your
foreperson in open court and officially recorded, it cannot ordinarily
be revoked.\