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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CHARLES RIDGEWAY, et al.,

Plaintiffs,

v.

WAL-MART STORES INC.,

Defendant.

Case No. 08-cv-05221-SI 

INTRODUCTORY JURY 

INSTRUCTIONS

The following preliminary instructions will be read to the jury prior to counsels’ opening 

statements.

Dated October 28, 2016

___________________________

SUSAN ILLSTON

United States District Judge

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INTRODUCTORY INSTRUCTION NO. 1 — DUTY OF JURY

Members of the jury: You are now the jury in this case. It is my duty to instruct you on the 

law.

It is your duty to find the facts from all the evidence in the case. To those facts you will

apply the law as I give it to you. You must follow the law as I give it to you whether you agree

with it or not. And you must not be influenced by any personal likes or dislikes, opinions,

prejudices or sympathy. That means that you must decide the case solely on the evidence before

you. You will recall that you took an oath to do so.

At the end of the trial I will give you final instructions. It is the final instructions that will

govern your duties.

Please do not read into these instructions, or anything I may say or do, that I have an

opinion regarding the evidence or what your verdict should be.

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INTRODUCTORY INSTRUCTION NO. 2 — CLAIMS AND DEFENSES

To help you follow the evidence, I will give you a brief summary of the positions of the 

parties and an overview of the case:

Plaintiffs in this case are nine former truck drivers for Wal-Mart Stores, Inc., which I will 

refer to as Wal-Mart. Those plaintiffs are Charles Ridgeway, Jaime Famoso, Joshua Harold, 

Richard Byers, Dan Thatcher, Willie Franklin, Tim Opitz, Farris Day, and Karl Merhoff.

In this case, these nine plaintiffs represent other Wal-Mart truck drivers, also called fleet 

drivers, in what is called a “class action.” A class action is a lawsuit that has been brought by one 

or more people on behalf of a larger group of people. All of these people together are called a 

“class.” 

The class in this case is:

 All persons employed in California by Defendant in the position of Private Fleet Driver at 

any time from October 10, 2004 to October 15, 2015.

Plaintiffs argue that Wal-Mart did not pay its fleet drivers the minimum wage for all of the 

time they worked. Specifically, plaintiffs say that minimum wage was not paid for time worked 

while plaintiffs completed the following tasks: (i) pre-trip inspections; (ii) post-trip inspections; 

(iii) fueling the tractor; (iv) washing the tractor/trailer; (v) weighing the tractor/trailer; (vi) 

performing adjustments after weighing the tractor/trailer; (vii) undergoing Department of 

Transportation inspections; (viii) meeting with a driver coordinator; (ix) taking California statemandated rest breaks; (x) 10-hour breaks mandated by the Department of Transportation (also 

called “layovers”); and (xi) certain time spent waiting at a vendor or at a store location.

The Court has previously found that Wal-Mart’s driver pay manuals state that no pay is 

earned for certain tasks. Such a policy, if enforced, does not comply with California’s minimum 

wage laws. What is stated in any pay plan or written policy does not itself establish whether 

someone was paid the minimum wage. Rather, plaintiffs must still prove that, in accordance with 

the pay policy, the class members in fact were not paid for certain tasks. Plaintiffs have the 

burden to prove their claims.

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In addition, plaintiffs contend that Wal-Mart did not pay class members the minimum 

wage for layovers.

Wal-Mart denies plaintiffs’ claims. Wal-Mart contends that it paid its drivers at least the 

minimum wage for all of the time they worked. Wal-Mart also contends that plaintiffs cannot 

offer evidence sufficient to meet their burden of proving their claims or damages.

Wal-Mart also raises certain affirmative defenses. Wal-Mart has the burden to prove its 

affirmative defenses. If Wal-Mart proves one or more of its affirmative defenses, that means 

plaintiffs may not be entitled to some or all of the damages they seek.

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INTRODUCTORY INSTRUCTION NO. 3 — BURDEN OF PROOF

When a party has the burden of proving any claim or affirmative defense by a 

preponderance of the evidence, it means you must be persuaded by the evidence that the claim or 

affirmative defense is more probably true than not true. You should base your decision on all of 

the evidence, regardless of which party presented it.

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INTRODUCTORY INSTRUCTION NO. 4 — WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

1. the sworn testimony of any witness;

2. the exhibits that are admitted into evidence;

3. any facts to which the lawyers have agreed; and

4. any facts that I may instruct you to accept as proved.

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INTRODUCTORY INSTRUCTION NO. 5 — WHAT IS NOT EVIDENCE

In reaching your verdict, you may consider only the testimony and exhibits received into 

evidence. Certain things are not evidence, and you may not consider them in deciding what the 

facts are. I will list them for you:

1. Arguments and statements by lawyers are not evidence. The lawyers are not 

witnesses. What they may say in their opening statements, closing arguments and at other times is 

intended to help you interpret the evidence, but it is not evidence. If the facts as you remember 

them differ from the way the lawyers have stated them, your memory of them controls.

2. Questions and objections by lawyers are not evidence. Attorneys have a duty to 

their clients to object when they believe a question is improper under the rules of evidence. You 

should not be influenced by the objection or by the court’s ruling on it.

3. Testimony that is excluded or stricken, or that you are instructed to disregard, is not 

evidence and must not be considered. In addition, some evidence may be received only for a 

limited purpose; when I instruct you to consider certain evidence only for a limited purpose, you 

must do so and you may not consider that evidence for any other purpose.

4. Anything you may see or hear when the court was not in session is not evidence. 

You are to decide the case solely on the evidence received at the trial.

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INTRODUCTORY INSTRUCTION NO. 6 — EVIDENCE FOR A LIMITED PURPOSE

Some evidence may be admitted only for a limited purpose.

When I instruct you that an item of evidence has been admitted only for a limited purpose, 

you must consider it only for that limited purpose and not for any other purpose.

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INTRODUCTORY INSTRUCTION NO. 7 — DIRECT AND CIRCUMSTANTIAL 

EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as 

testimony by a witness about what that witness personally saw or heard or did. Circumstantial 

evidence is proof of one or more facts from which you could find another fact. You should 

consider both kinds of evidence. The law makes no distinction between the weight to be given to 

either direct or circumstantial evidence. It is for you to decide how much weight to give to any 

evidence.

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INTRODUCTORY INSTRUCTION NO. 8 — RULING ON OBJECTIONS

There are rules of evidence that control what can be received into evidence. When a 

lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that 

it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the 

question may be answered or the exhibit received. If I sustain the objection, the question cannot 

be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, 

you must ignore the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that you disregard or 

ignore that evidence. That means when you are deciding the case, you must not consider the 

stricken evidence for any purpose.

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INTRODUCTORY INSTRUCTION NO. 9 — CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and 

which testimony not to believe. You may believe everything a witness says, or part of it, or none 

of it.

In considering the testimony of any witness, you may take into account:

1. the opportunity and ability of the witness to see or hear or know the things testified 

to;

2. the witness’s memory;

3. the witness’s manner while testifying;

4. the witness’s interest in the outcome of the case, if any;

5. the witness’s bias or prejudice, if any;

6. whether other evidence contradicted the witness’s testimony;

7. the reasonableness of the witness’s testimony in light of all the evidence; and

8. any other factors that bear on believability.

Sometimes a witness may say something that is not consistent with something else he or 

she said. Sometimes different witnesses will give different versions of what happened. People 

often forget things or make mistakes in what they remember. Also, two people may see the same 

event but remember it differently. You may consider these differences, but do not decide that 

testimony is untrue just because it differs from other testimony.

However, if you decide that a witness has deliberately testified untruthfully about 

something important, you may choose not to believe anything that witness said. On the other 

hand, if you think the witness testified untruthfully about some things but told the truth about 

others, you may accept the part you think is true and ignore the rest.

The weight of the evidence as to a fact does not necessarily depend on the number of 

witnesses who testify. What is important is how believable the witnesses were, and how much 

weight you think their testimony deserves.

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INTRODUCTORY INSTRUCTION NO. 10 — CONDUCT OF THE JURY

I will now say a few words about your conduct as jurors.

First, keep an open mind throughout the trial, and do not decide what the verdict should be 

until you and your fellow jurors have completed your deliberations at the end of the case.

Second, because you must decide this case based only on the evidence received in the case 

and on my instructions as to the law that applies, you must not be exposed to any other 

information about the case or to the issues it involves during the course of your jury duty. Thus, 

until the end of the case or unless I tell you otherwise:

Do not communicate with anyone in any way and do not let anyone else communicate with

you in any way about the merits of the case or anything to do with it. This includes discussing the 

case in person, in writing, by phone or electronic means, via email, text messaging, or any internet 

chat room, blog, website or other social media, including but not limited to Facebook, Twitter, 

Instagram, or any other social media website or app. This applies to communicating with your 

fellow jurors until I give you the case for deliberation, and it applies to communicating with 

everyone else including your family members, your employer, the media or press, and the people 

involved in the trial, although you may notify your family and your employer that you have been 

seated as a juror in the case. But, if you are asked or approached in any way about your jury 

service or anything about this case, you must respond that you have been ordered not to discuss 

the matter and report the contact to the court.

Because you will receive all the evidence and legal instruction you properly may consider 

to return a verdict: do not read, watch or listen to any news or media accounts or commentary 

about the case or anything to do with it; do not do any research, such as consulting dictionaries, 

searching the Internet or using other reference materials; and do not make any investigation or in 

any other way try to learn about the case on your own.

The law requires these restrictions to ensure the parties have a fair trial based on the same 

evidence that each party has had an opportunity to address. A juror who violates these restrictions 

jeopardizes the fairness of these proceedings, and a mistrial could result that would require the 

entire trial process to start over. If any juror is exposed to any outside information, please notify 

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the court immediately.

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INTRODUCTORY INSTRUCTION NO. 11 — NO TRANSCRIPT AVAILABLE TO JURY

I urge you to pay close attention to the trial testimony as it is given. During deliberations 

you will not have a transcript of the trial testimony.

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INTRODUCTORY INSTRUCTION NO. 12 — TAKING NOTES

If you wish, you may take notes to help you remember the evidence. If you do take notes, 

please keep them to yourself until you go to the jury room to decide the case. Do not let 

notetaking distract you. When you leave, your notes should be left in the jury room. No one will 

read your notes.

Whether or not you take notes, you should rely on your own memory of the evidence. 

Notes are only to assist your memory. You should not be overly influenced by your notes or those 

of other jurors.

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INTRODUCTORY INSTRUCTION NO. 13 — BENCH CONFERENCES AND RECESSES

From time to time during the trial, it may become necessary for me to talk with the 

attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is 

present in the courtroom, or by calling a recess. Please understand that while you are waiting, we 

are working. The purpose of these conferences is not to keep relevant information from you, but 

to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion 

and error.

Of course, we will do what we can to keep the number and length of these conferences to a 

minimum. I may not always grant an attorney’s request for a conference. Do not consider my 

granting or denying a request for a conference as any indication of my opinion of the case or of 

what your verdict should be.

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INTRODUCTORY INSTRUCTION NO. 14 — OUTLINE OF TRIAL

Trials proceed in the following way: First, each side may make an opening statement. An 

opening statement is not evidence. It is simply an outline to help you understand what that party 

expects the evidence will show. A party is not required to make an opening statement.

Plaintiffs will then present evidence, and counsel for Wal-Mart may cross-examine. Then 

Wal-Mart may present evidence, and counsel for Plaintiffs may cross-examine.

After the evidence has been presented, I will instruct you on the law that applies to the case 

and the attorneys will make closing arguments.

After that, you will go to the jury room to deliberate on your verdict.

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