Florida Standard Jury Instructions in Civil Cases

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 1

FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES

FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES .................... 1

SECTION 101 — OATHS ......................................................................................13

101.1 OATH OF JURORS BEFORE VOIR DIRE .........................................13

101.2 OATH OF JUROR AFTER VOIR DIRE ..............................................13

101.3 OATH OF A WITNESS .........................................................................13

101.4 OATH OF AN INTERPRETER ............................................................13

SECTION 200 — PRELIMINARY INSTRUCTIONS ..........................................14

QUALIFICATIONS INSTRUCTION ....................................................................15

201.1 DESCRIPTION OF THE CASE (Prior to Voir Dire) ............................17

201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES ..........18

201.3 EXPLANATION OF THE VOIR DIRE PROCESS .............................23

202.1 INTRODUCTION ..................................................................................25

202.2 EXPLANATION OF THE TRIAL PROCEDURE ...............................26

202.3 NOTE-TAKING BY JURORS ..............................................................32

202.4 JUROR QUESTIONS ............................................................................34

202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH

TRANSLATION/INTERPRETATION ............................................................36

SECTION 300 — EVIDENCE INSTRUCTIONS ..................................................37

301.1 DEPOSITION TESTIMONY, INTERROGATORIES, STIPULATED

TESTIMONY, STIPULATIONS, AND ADMISSIONS (from 1.13(a)) ..........38

301.2 INSTRUCTION WHEN FIRST ITEM OF DOCUMENTARY,

PHOTOGRAPHIC, OR PHYSICAL EVIDENCE IS ADMITTED ................40

301.3 INSTRUCTION WHEN EVIDENCE IS FIRST PUBLISHED TO

JURORS .............................................................................................................41

301.4 INSTRUCTION REGARDING VISUAL OR DEMONSTRATIVE

AIDS ..................................................................................................................42

301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE .....................43

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 2

301.6 JURY TO BE GUIDED BY OFFICIAL ENGLISH

TRANSLATION/INTERPRETATION ............................................................44

301.7 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSCRIPT OF

RECORDING IN FOREIGN LANGUAGE (ACCURACY NOT IN

DISPUTE) ..........................................................................................................46

301.8 JURY TO BE GUIDED BY OFFICIAL ENGLISH

TRANSLATION/INTERPRETATION — TRANSCRIPT OF RECORDING

IN FOREIGN LANGUAGE (ACCURACY IN DISPUTE) .............................47

301.9 DISREGARD STRICKEN MATTER ...................................................48

301.10 INSTRUCTION BEFORE RECESS ...................................................49

301.11 FAILURE TO MAINTAIN EVIDENCE OR KEEP A RECORD ......50

SECTION 400 — SUBSTANTIVE INSTRUCTIONS ..........................................52

401 GENERAL NEGLIGENCE .............................................................................53

401.1 INTRODUCTION ..................................................................................54

401.2 SUMMARY OF CLAIMS .....................................................................55

401.3 GREATER WEIGHT OF THE EVIDENCE .........................................56

401.4 NEGLIGENCE .......................................................................................57

401.5 NEGLIGENCE OF A CHILD ................................................................59

401.6 NEGLIGENCE OF A COMMON CARRIER .......................................60

401.7 RES IPSA LOQUITUR ..........................................................................61

401.8 VIOLATION OF NON-TRAFFIC PENAL STATUTE AS

NEGLIGENCE PER SE ....................................................................................62

401.9 VIOLATION OF STATUTE, ORDINANCE, OR REGULATION AS

EVIDENCE OF NEGLIGENCE .......................................................................63

401.10 EQUAL AND RECIPROCAL RIGHTS OF MOTORISTS AND

PEDESTRIANS .................................................................................................65

401.11 DUTY OF MOTORIST TOWARD CHILDREN ................................66

401.12 LEGAL CAUSE ...................................................................................67

401.13 PREEMPTIVE CHARGES ..................................................................69

401.14 PRELIMINARY ISSUES — VICARIOUS LIABILITY ....................71

401.15 PRELIMINARY ISSUES — COMMON CARRIER..........................76

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401.16 PRELIMINARY ISSUES — PREMISES LIABILITY ......................78

401.17 BURDEN OF PROOF ON PRELIMINARY ISSUES ........................81

401.18 ISSUES ON PLAINTIFF’S CLAIM — GENERAL NEGLIGENCE 82

401.19 ISSUES ON PLAINTIFF’S CLAIM — COMMON CARRIER ........84

401.20 ISSUES ON PLAINTIFF’S CLAIM — PREMISES LIABILITY .....85

401.21 BURDEN OF PROOF ON MAIN CLAIM .........................................88

401.22 DEFENSE ISSUES ..............................................................................89

401.23 BURDEN OF PROOF ON DEFENSE ISSUES ..................................92

401.24 COUNTERCLAIMS, CROSS CLAIMS, AND THIRD PARTY

CLAIMS ............................................................................................................94

402 PROFESSIONAL NEGLIGENCE ..................................................................95

402.1 INTRODUCTION ........................................................................................96

402.2 SUMMARY OF CLAIMS .....................................................................97

402.3 GREATER WEIGHT OF THE EVIDENCE .........................................98

402.4 MEDICAL NEGLIGENCE ....................................................................99

402.5 OTHER PROFESSIONAL NEGLIGENCE ........................................103

402.6 LEGAL CAUSE ...................................................................................104

402.7 LEGAL CAUSE (TREATMENT WITHOUT INFORMED CONSENT)

..........................................................................................................................106

402.8 PREEMPTIVE CHARGES ..................................................................107

402.9 PRELIMINARY ISSUES — VICARIOUS LIABILITY ....................109

402.10 BURDEN OF PROOF ON PRELIMINARY ISSUES ......................112

402.11 ISSUES ON MAIN CLAIM...............................................................113

402.12 ISSUES ON CLAIM OF ATTORNEY MALPRACTICE ARISING

OUT OF CIVIL LITIGATION .......................................................................115

402.13 BURDEN OF PROOF ON MAIN CLAIM .......................................117

402.14 DEFENSE ISSUES ............................................................................118

402.15 BURDEN OF PROOF ON DEFENSE ISSUES ................................121

403 PRODUCTS LIABILITY ..............................................................................123

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403.1 INTRODUCTION ................................................................................124

403.2 SUMMARY OF CLAIMS ...................................................................125

403.3 GREATER WEIGHT OF THE EVIDENCE .......................................126

403.4 EXPRESS WARRANTY .....................................................................127

403.5 IMPLIED WARRANTY OF MERCHANTABILITY ........................128

403.6 IMPLIED WARRANTY OF FITNESS FOR PARTICULAR

PURPOSE ........................................................................................................129

403.7 STRICT LIABILITY ............................................................................130

403.8 STRICT LIABILITY FAILURE TO WARN ......................................133

403.9 NEGLIGENCE .....................................................................................134

403.10 NEGLIGENT FAILURE TO WARN ................................................135

403.11 INFERENCE OF PRODUCT DEFECT OR NEGLIGENCE ...........136

403.12 LEGAL CAUSE .................................................................................137

403.13 PRELIMINARY ISSUE .....................................................................140

403.14 BURDEN OF PROOF ON PRELIMINARY ISSUE ........................141

403.15 ISSUES ON MAIN CLAIM ................................................................142

403.16 ISSUES ON CRASHWORTHINESS AND “ENHANCED INJURY”

CLAIMS ..........................................................................................................144

403.17 BURDEN OF PROOF ON MAIN CLAIM .......................................145

403.18 DEFENSE ISSUES ............................................................................146

403.19 BURDEN OF PROOF ON DEFENSE ISSUES ................................149

404 INSURER’S BAD FAITH .............................................................................151

404.1 INTRODUCTION ................................................................................152

404.2 SUMMARY OF CLAIMS OR CONTENTIONS................................153

404.3 GREATER WEIGHT OF THE EVIDENCE .......................................154

404.4 INSURER’S BAD FAITH (FAILURE TO SETTLE) .........................155

404.5 MEDICAL MALPRACTICE INSURER’S BAD FAITH FAILURE TO

SETTLE ...........................................................................................................156

404.6 LEGAL CAUSE ...................................................................................158

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404.7 ISSUES ON CLAIM ............................................................................160

404.8 BURDEN OF PROOF ..........................................................................161

404.9 CONCLUDING INSTRUCTION WHEN COURT TO AWARD

DAMAGES ......................................................................................................162

404.10 DAMAGES (CASES WITH CLAIMS FOR MENTAL DISTRESS)

..........................................................................................................................163

404.11 BURDEN OF PROOF ON MENTAL DISTRESS CLAIM ..............164

404.12 DAMAGES ON MENTAL DISTRESS CLAIM ..............................165

404.13 PUNITIVE DAMAGES .....................................................................166

405 DEFAMATION .............................................................................................167

405.1 INTRODUCTION ................................................................................168

405.2 SUMMARY OF CLAIMS AND CONTENTIONS ............................169

405.3 GREATER WEIGHT OF THE EVIDENCE .......................................170

405.4 CLEAR AND CONVINCING EVIDENCE ........................................171

405.5 NEGLIGENCE .....................................................................................172

405.6 LEGAL CAUSE ...................................................................................173

405.7 ISSUES ON PLAINTIFF’S CLAIM — PLAINTIFF A PUBLIC

OFFICIAL OR PUBLIC FIGURE ..................................................................176

405.8 ISSUES ON PLAINTIFF’S CLAIM — PLAINTIFF A PRIVATE

INDIVIDUAL AND A MEDIA DEFENDANT .............................................178

405.9 ISSUES ON PLAINTIFF’S CLAIM — PRIVATE CLAIMANT,

NON-MEDIA DEFENDANT .........................................................................180

405.10 DEFAMATION DAMAGES .............................................................183

406 MALICIOUS PROSECUTION .....................................................................190

406.1 INTRODUCTION ................................................................................191

406.2 SUMMARY OF CLAIMS ...................................................................192

406.3 GREATER WEIGHT OF THE EVIDENCE .......................................193

406.4 PROBABLE CAUSE ...........................................................................194

406.5 MALICE ...............................................................................................195

406.6 INSTITUTING OR CONTINUING A PROCEEDING ......................196

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406.7 LEGAL CAUSE ...................................................................................197

406.8 ISSUES ON CLAIM ............................................................................200

406.9 BURDEN OF PROOF ON CLAIM .....................................................201

406.10 DEFENSE ISSUES ............................................................................202

406.11 BURDEN OF PROOF ON DEFENSE ISSUES ................................203

406.12 MALICIOUS PROSECUTION DAMAGES ....................................204

407 FALSE IMPRISONMENT ............................................................................205

407.1 INTRODUCTION ................................................................................206

407.2 SUMMARY OF CLAIMS ...................................................................207

407.3 GREATER WEIGHT OF THE EVIDENCE .......................................208

407.4 INTENTIONAL RESTRAINT ............................................................209

407.5 LEGAL CAUSE ...................................................................................210

407.6 ISSUES ON CLAIM ............................................................................213

407.7 BURDEN OF PROOF ON CLAIM .....................................................214

407.8 DEFENSE ISSUES ..............................................................................215

407.9 BURDEN OF PROOF ON DEFENSE ISSUES ..................................216

407.10 FALSE IMPRISONMENT DAMAGES ............................................217

408 TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS ......218

408.1 INTRODUCTION ......................................................................................219

408.2 SUMMARY OF CLAIMS OR CONTENTIONS................................220

408.3 GREATER WEIGHT OF THE EVIDENCE .......................................221

408.4 LEGAL CAUSE .........................................................................................222

408.5 ISSUES ON PLAINTIFF’S CLAIM — INTERFERENCE WITH

CONTRACT NOT TERMINABLE AT WILL ..............................................225

408.6 ISSUES ON PLAINTIFF’S CLAIM — INTERFERENCE WITH

BUSINESS RELATIONS OR WITH CONTRACT TERMINABLE AT WILL

..........................................................................................................................227

409 MISREPRESENTATION ..............................................................................231

409.1 INTRODUCTION ................................................................................232

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409.2 SUMMARY OF CLAIMS ...................................................................233

409.3 GREATER WEIGHT OF THE EVIDENCE .......................................234

409.4 NEGLIGENCE .....................................................................................235

409.5 MATERIAL FACT ..............................................................................236

409.6 LEGAL CAUSE ...................................................................................237

409.7 ISSUES ON PLAINTIFF’S CLAIM — FRAUDULENT

MISREPRESENTATION ...............................................................................239

409.8 ISSUES ON PLAINTIFF’S CLAIM — NEGLIGENT

MISREPRESENTATION ...............................................................................241

409.9 ISSUES ON PLAINTIFF’S CLAIM — FALSE INFORMATION

NEGLIGENTLY SUPPLIED FOR THE GUIDANCE OF OTHERS ...........243

409.10 BURDEN OF PROOF ON MAIN CLAIM .......................................245

409.11 DEFENSE ISSUES ............................................................................246

409.12 BURDEN OF PROOF ON DEFENSE ISSUES ................................247

409.13 DAMAGES .........................................................................................248

410 OUTRAGEOUS CONDUCT CAUSING SEVERE EMOTIONAL

DISTRESS .............................................................................................................249

410.1 INTRODUCTION ................................................................................250

410.2 SUMMARY OF CLAIMS ...................................................................251

410.3 GREATER WEIGHT OF THE EVIDENCE .......................................252

410.4 EXTREME AND OUTRAGEOUS CONDUCT .................................253

410.5 SEVERE EMOTIONAL DISTRESS ...................................................254

410.6 LEGAL CAUSE ...................................................................................255

410.7 ISSUES ON CLAIM ............................................................................258

410.8 BURDEN OF PROOF ON CLAIM .....................................................259

411 CIVIL THEFT................................................................................................260

411.1 INTRODUCTION ................................................................................261

411.2 SUMMARY OF CLAIMS ...................................................................262

411.3 CLEAR AND CONVINCING EVIDENCE ........................................263

411.4 LEGAL CAUSE ...................................................................................264

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411.5 ISSUES ON CLAIM ............................................................................267

411.6 BURDEN OF PROOF ON CLAIM .....................................................269

411.7 CIVIL THEFT DAMAGES .................................................................270

412 CONTRIBUTION AMONG TORTFEASORS ............................................271

412.1 CONTRIBUTION SOUGHT BY CROSS-CLAIMS BETWEEN

DEFENDANT TORTFEASORS IN INJURED PARTY’S ORIGINAL

ACTION ..........................................................................................................272

412.2 CONTRIBUTION SOUGHT BY THIRD-PARTY CLAIM IN

INJURED PARTY’S ORIGINAL ACTION ..................................................273

412.3 INTRODUCTION FOR INDEPENDENT CONTRIBUTION CLAIM

..........................................................................................................................274

412.4 SUMMARY OF CLAIMS ...................................................................275

412.5 GREATER WEIGHT OF THE EVIDENCE .......................................276

412.6 NEGLIGENCE .....................................................................................277

412.7 LEGAL CAUSE ...................................................................................278

412.8 ISSUES ON CLAIM AND BURDEN OF PROOF .............................280

412.9 DEFENSE ISSUE .................................................................................281

413 CLAIM FOR PERSONAL INJURY PROTECTION INSURANCE (PIP)

BENEFITS (MEDICAL BENEFITS ONLY) .......................................................282

413.1 INTRODUCTION ................................................................................283

413.2 SUMMARY OF CLAIMS OR CONTENTIONS................................284

413.3 GREATER WEIGHT OF THE EVIDENCE .......................................285

413.4 ISSUES ON CLAIM ............................................................................286

413.5 BURDEN OF PROOF ON CLAIM .....................................................289

414 INTENTIONAL TORT AS AN EXCEPTION TO EXCLUSIVE REMEDY

OF WORKERS’ COMPENSATION ....................................................................290

414.1 INTRODUCTION ................................................................................291

414.2 SUMMARY OF CLAIMS ...................................................................292

414.3 CLEAR AND CONVINCING EVIDENCE ........................................293

414.4 LEGAL CAUSE ...................................................................................294

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414.5 ISSUES ON CLAIM ............................................................................296

414.6 BURDEN OF PROOF ..........................................................................297

415 UNLAWFUL RETALIATION .....................................................................298

415.1 INTRODUCTION ................................................................................299

415.2 SUMMARY OF CLAIMS AND DEFENSES .....................................300

415.3 GREATER WEIGHT OF THE EVIDENCE .......................................301

415.4 RETALIATION; ADVERSE EMPLOYMENT ACTION ..................302

415.5 PROTECTED ACTIVITY ...................................................................303

415.6 LEGAL CAUSE — RETALIATION ..................................................304

415.7 LEGAL CAUSE — DAMAGE ...........................................................306

415.8 PRELIMINARY ISSUE — ADVERSE EMPLOYMENT ACTION .307

415.9 BURDEN OF PROOF ON PRELIMINARY ISSUE ..........................308

415.10 ISSUES ON PLAINTIFF’S CLAIM..................................................309

415.11 BURDEN OF PROOF ON CLAIM ...................................................310

415.12 UNLAWFUL RETALIATION DAMAGES .....................................311

415.13 DEFENSE ISSUE ON DAMAGES (MITIGATION — DISCHARGE)

..........................................................................................................................312

415.14 REDUCTION OF DAMAGES TO PRESENT VALUE ...................313

417 UNLAWFUL DISCRIMINATION ...............................................................314

417.1 INTRODUCTION ................................................................................315

417.2 SUMMARY OF CLAIMS AND DEFENSES .....................................315

417.3 GREATER WEIGHT OF THE EVIDENCE .......................................316

417.4 DISCRIMINATION — DISPARATE TREATMENT .......................316

417.5 LEGAL CAUSE — DISCRIMINATION ...........................................317

417.6 LEGAL CAUSE — DAMAGE ...........................................................320

417.7 ISSUES ON PLAINTIFF’S CLAIM....................................................320

417.8 BURDEN OF PROOF ON CLAIM .....................................................321

417.9 UNLAWFUL DISCRIMINATION DAMAGES ................................321

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 10

417.10 AFFIRMATIVE DEFENSE — FAILURE TO MITIGATE LOST

WAGES ...........................................................................................................323

417.11 AFFIRMATIVE DEFENSE — AFTER-ACQUIRED EVIDENCE .324

417.12 REDUCTION OF DAMAGES TO PRESENT VALUE ...................326

SECTION 500 DAMAGES ...................................................................................328

501.1 PERSONAL INJURY AND PROPERTY DAMAGES:

INTRODUCTION ...........................................................................................330

501.2 PERSONAL INJURY AND PROPERTY DAMAGES: ELEMENTS

..........................................................................................................................331

501.3 MOTOR VEHICLE NO-FAULT INSTRUCTION .............................335

501.4 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT AND

MULTIPLE DEFENDANTS ..........................................................................339

501.5 OTHER CONTRIBUTING CAUSES OF DAMAGES ......................339

501.6 MORTALITY TABLES .......................................................................342

501.7 REDUCTION OF DAMAGES TO PRESENT VALUE .....................343

501.8 COLLATERAL SOURCE RULE ........................................................345

501.9 LIABILITY OF MULTIPLE TORTFEASORS ..................................347

502.1 WRONGFUL DEATH DAMAGES: INTRODUCTION ....................347

502.2 WRONGFUL DEATH DAMAGES: ELEMENTS FOR ESTATE AND

SURVIVORS ...................................................................................................349

502.3 WRONGFUL DEATH DAMAGES OF ESTATE AND SURVIVORS:

SEPARATE AWARDS FOR ESTATE AND SURVIVORS ........................353

502.4 WRONGFUL DEATH DAMAGES: ELEMENTS WHEN THERE

ARE NO SURVIVORS ...................................................................................354

502.5 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT AND

MULTIPLE DEFENDANTS ..........................................................................355

502.6 MORTALITY TABLES .......................................................................356

502.7 REDUCTION OF DAMAGES TO PRESENT VALUE .....................357

502.8 LIABILITY OF MULTIPLE TORTFEASORS ..................................359

503.1 PUNITIVE DAMAGES — BIFURCATED PROCEDURE ...............361

503.2 PUNITIVE DAMAGES — NON-BIFURCATED PROCEDURE .....370

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 11

SECTION 600 — SUBSTANTIVE INSTRUCTIONS — GENERAL ...............378

601.1 WEIGHING THE EVIDENCE ............................................................379

601.2 BELIEVABILITY OF WITNESSES ...................................................380

601.3 JURY TO BE GUIDED BY OFFICIAL ENGLISH

TRANSLATION/INTERPRETATION ..........................................................382

601.4 MULTIPLE CLAIMS, NUMEROUS PARTIES, CONSOLIDATED

CASES .............................................................................................................383

601.5 CONCLUDING INSTRUCTION (BEFORE FINAL ARGUMENT) 384

SECTION 700 — CLOSING INSTRUCTIONS ..................................................385

SECTION 700 — CLOSING INSTRUCTIONS ............................................386

SECTION 800 — SUPPLEMENTAL MATTERS ...............................................390

801.1 JUROR QUESTIONS DURING DELIBERATIONS .........................391

801.2 READ-BACK OF TESTIMONY .........................................................392

801.3 JURY DEADLOCKED ........................................................................394

801.4 INSTRUCTION UPON DISCHARGE OF JURY ..............................395

APPENDIX A MODEL JURY INSTRUCTIONS ...............................................396

MODEL INSTRUCTION NO. 1 .....................................................................398

MODEL INSTRUCTION NO. 2 .....................................................................424

MODEL INSTRUCTION NO. 3 .....................................................................434

MODEL INSTRUCTION NO. 4 .....................................................................444

MODEL INSTRUCTION NO. 5 .....................................................................453

MODEL INSTRUCTION NO. 6 .....................................................................460

MODEL INSTRUCTION NO. 7 .....................................................................469

APPENDIX B VERDICT FORMS ......................................................................481

FORM 1. MODEL FORM OF VERDICT FOR GENERAL NEGLIGENCE

WITH APPORTIONMENT OF FAULT ........................................................483

2. DAMAGES ..................................................................................................485

FORM 2(a). MODEL FORM OF VERDICT FOR PERSONAL INJURY

DAMAGES ......................................................................................................487

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 12

FORM 2(b). MODEL FORM OF VERDICT FOR WRONGFUL DEATH

DAMAGES ......................................................................................................489

FORM 3(a). MODEL FORM OF VERDICT FOR BIFURCATED PUNITIVE

DAMAGE CASES ..........................................................................................492

FORM 3(b). MODEL FORM OF VERDICT FOR NON-BIFURCATED

PUNITIVE DAMAGE CASES .......................................................................495

FORM 4. MODEL FORM OF VERDICT FOR STATUTE OF

LIMITATIONS DEFENSE IN A MEDICAL NEGLIGENCE CASE ...........498

FORM 5(a). MODEL FORM OF VERDICT FOR EMERGENCY MEDICAL

TREATMENT; NO ISSUE AS TO THE APPLICABILITY OF F.S.

768.13(2)(b) .....................................................................................................500

FORM 5(b). MODEL FORM OF VERDICT FOR EMERGENCY MEDICAL

TREATMENT; ISSUE AS TO THE APPLICABILITY OF F.S. 768.13(2)(b);

NO ISSUE AS TO COMPARATIVE NEGLIGENCE ..................................501

FORM 5(c). MODEL FORM OF VERDICT FOR EMERGENCY MEDICAL

TREATMENT; ISSUES AS TO BOTH APPLICABILITY OF F.S.

768.13(2)(b) AND COMPARATIVE NEGLIGENCE ...................................503

FORM 6. MODEL FORM OF VERDICT FOR PERSONAL INJURY

PROTECTION INSURANCE BENEFITS (PIP) (MEDICAL BENEFITS

ONLY) .............................................................................................................505

APPENDIX C ........................................................................................................506

PUNITIVE DAMAGE INSTRUCTIONS FOR CAUSES OF ACTION

ARISING PRIOR TO OCTOBER 1, 1999 .....................................................506

APPENDIX D ........................................................................................................515

APPENDIX E ........................................................................................................516

402.16 EMERGENCY MEDICAL TREATMENT CLAIMS

INSTRUCTIONS FOR CAUSES OF ACTION ARISING PRIOR TO

SEPTEMBER 15, 2003 ...................................................................................516

402.16a EMERGENCY MEDICAL TREATMENT—Jury Issue As To

Application of F.S. 768.13(2)(b) .....................................................................517

402.16b EMERGENCY MEDICAL TREATMENT .....................................520

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 13

SECTION 101 — OATHS

101.1 Oath of Jurors Before Voir Dire

101.2 Oath of Jurors After Voir Dire

101.3 Oath of a Witness

101.4 Oath of an Interpreter

101.1 OATH OF JURORS BEFORE VOIR DIRE

Do you solemnly swear or affirm that you will answer truthfully all

questions asked of you as prospective jurors [so help you God]?

101.2 OATH OF JUROR AFTER VOIR DIRE

Do you solemnly swear or affirm that you will well and truly try this

case between the [plaintiff(s)] [petitioner(s)] and [defendant(s)]

[respondent(s)], and a true verdict render according to the law and evidence

[so help you God]?

101.3 OATH OF A WITNESS

Do you solemnly swear or affirm that the evidence you are about to give

will be the truth, the whole truth, and nothing but the truth [so help you

God]?

101.4 OATH OF AN INTERPRETER

Do you solemnly swear or affirm that you will make a true

interpretation to the witness of all questions or statements made to [him] [her]

in a language which that person understands, and a true interpretation of the

witness’ statements into the English language [so help you God]?

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 14

SECTION 200 — PRELIMINARY INSTRUCTIONS

Qualifications Instruction

A. During Jury Selection

201.1 Description of the Case

201.2 Introduction of Participants and Their Roles

201.3 Explanation of the Voir Dire Process

B. After Jury Selected and Sworn

202.1 Introduction

202.2 Explanation of the Trial Procedure

202.3 Note-Taking by Jurors

202.4 Juror Questions

202.5 Jury to Be Guided by Official English

Translation/Interpretation

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 15

QUALIFICATIONS INSTRUCTION

Many of you have electronic devices such as cell phones, smartphones,

tablets, and laptops. Even though you have not yet been selected as a juror,

there are some strict rules that you must follow about electronic devices.

When you are called to a courtroom, the judge will give you specific

instructions on the use of electronic devices. These rules are so important that

the judge may tell you that you must turn off your cell phone or other

electronic devices completely or that you cannot have your cell phone or

electronic devices in the courtroom. If someone needs to contact you in case of

an emergency, the judge will provide you with a phone number where you can

receive messages.

If the trial judge allows you to keep your cell phones, computers, or

other electronic devices, you cannot use them to take photographs, video

recordings, or audio recordings of the proceedings in the courtroom or your

fellow jurors. You must not use them to search the Internet or to find out

anything related to any cases in the courthouse.

Why is this restriction imposed? This restriction is imposed because

jurors must decide the case without distraction and only on the evidence

presented in the courtroom. I know that, for some of you, these restrictions

affect your normal daily activities and may require a change in the way you

are used to communicating and perhaps even in the way you are used to

learning.

If you investigate, research, or make inquiries on your own, the trial

judge has no way to make sure that the information you obtain is proper for

the case. The parties likewise have no opportunity to dispute or challenge the

accuracy of what you find. Any independent investigation by a juror unfairly

and improperly prevents the parties from having that opportunity our

judicial system promises.

Between now and when you have been discharged from jury duty by the

judge, you must not discuss any information about your jury service with

anyone, including friends, co-workers, and family members. You may tell

those who need to know where you are that you have been called for jury

duty. If you are picked for a jury, you may tell people that you have been

picked for a jury and how long the case may take. However, you must not give

anyone any information about the case itself or the people involved in the

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 16

case. You must also warn people not to try to say anything to you or write to

you about your jury service or the case. This includes face-to-face, phone or

computer communications.

I want to stress that you must not use electronic devices or computers to

talk about this case, including tweeting, texting, blogging, e-mailing, posting

information on a website or chat room, or any other means at all. Do not send

or accept any messages, including e-mail and text messages, about your jury

service. You must not disclose your thoughts about your jury service or ask

for advice on how to decide any case.

The judge will tell you when you are released from this instruction.

Remember, these rules are designed to guarantee a fair trial. It is important

that you understand the rules as well as the impact on our system of justice if

you fail to follow them. If it is determined that any one of you has violated

this rule, and conducted any type of independent research or investigation, it

may result in a mistrial. A mistrial would require the case to be tried again at

great expense to the parties and the judicial system. The judge may also

impose a penalty upon any juror who violates this instruction. All of us are

depending on you to follow these rules, so that there will be a fair and lawful

resolution of every case.

NOTE ON USE

This instruction should be given in addition to and at the conclusion of the

instructions normally given to the prospective jurors. The portion of this

instruction dealing with communication with others and outside research may need

to be modified to include other specified means of communication or research as

technology develops.

(Revised December 4, 2014)

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 17

A. During Jury Selection

201.1 DESCRIPTION OF THE CASE

(PRIOR TO VOIR DIRE)

Welcome. [I] [The clerk] will now administer your oath.

Now that you have been sworn, I’d like to give you an idea about what

we are here to do.

This is a civil trial. A civil trial is different from a criminal case, where a

defendant is charged by the state prosecutor with committing a crime. The

subject of a civil trial is a disagreement between people or companies [or

others, as appropriate], where the claims of one or more of these parties have

been brought to court to be resolved. It is called “a trial of a lawsuit.”

This is a case about (insert brief description of claim(s) and defense(s)

brought to trial in this case).*

The incident involved in this case occurred on (date) at (location). (Add

any other information relevant to voir dire).

The principal witnesses who will testify in this case are (list witnesses).

NOTE ON USE FOR 201.1

*See, for example, 401.2.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 18

201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES

Who are the people here and what do they do?

Judge/Court: I am the Judge. You may hear people occasionally refer to

me as “The Court.” That is the formal name for my role. My job is to

maintain order and decide how to apply the rules of the law to the trial. I will

also explain various rules to you that you will need to know in order to do

your job as the jury. It is my job to remain neutral on the issues of this

lawsuit.

Parties: A party who files a lawsuit is called the Plaintiff. A party that is

sued is called the Defendant.

Attorneys: The attorneys have the job of representing their clients. That

means they speak for their client here at the trial. They have taken oaths as

attorneys to do their best and to follow the rules for their profession.

Plaintiff’s Counsel: The attorney on this side of the courtroom, (introduce

by name), represents (client name) and is the person who filed the lawsuit here

at the courthouse. [His] [Her] job is to present [his] [her] client’s side of things

to you. [He] [She] and [his] [her] client will be referred to most of the time as

“the plaintiff.” (Attorney name), will you please introduce who is sitting at the

table with you?

[Plaintiff without Counsel: (Introduce claimant by name), on this side of the

courtroom, is the person who filed the lawsuit at the courthouse. (Claimant) is

not represented by an attorney and will present [his] [her] side of things to

you [himself] [herself].]

Defendant’s Counsel: The attorney on this side of the courtroom,

(introduce by name), represents (client name), the one who has been sued. [His]

[Her] job is to present [his] [her] client’s side of things to you. [He] [She] and

[his] [her] client will usually be referred to here as “the defendant.” (Attorney

name), will you please introduce who is sitting at the table with you?

[Defendant’s Counsel: The attorney on this side of the courtroom,

(introduce by name), represents (client name), the one who has been sued. [His]

[Her] job is to present [his] [her] client’s side of things to you. [He] [She] and

[his] [her] client will usually be referred to here as “the defendant.” [His]

[Her] client (defendant uninsured or underinsured motorist carrier) is (claimant’s

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 19

name) motor vehicle insurance company and provided [him] [her] [uninsured]

[underinsured] motorist coverage, which may be available to pay some or all

of the damages that may be awarded.]*

*Use the bracketed paragraph above when the case involves an uninsured

or underinsured motorist carrier.

[Defendant without Counsel: (Introduce defendant by name), on this side of

the courtroom, is the one who has been sued. (Defendant) is not represented by

an attorney and will present [his] [her] side of things to you [himself]

[herself].]

Court Clerk: This person sitting in front of me, (name), is the court clerk.

[He] [She] is here to assist me with some of the mechanics of the trial process,

including the numbering and collection of the exhibits that are introduced in

the course of the trial.

Court Reporter: The person sitting at the stenographic machine, (name),

is the court reporter. [His] [Her] job is to keep an accurate legal record of

everything we say and do during this trial.

Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to

maintain order and security in the courtroom. The bailiff is also my

representative to the jury. Anything you need or any problems that come up

for you during the course of the trial should be brought to [him] [her].

However, the bailiff cannot answer any of your questions about the case. Only

I can do that.

Jury: Last, but not least, is the jury, which we will begin to select in a

few moments from among all of you. The jury’s job will be to decide what the

facts are and what the facts mean. Jurors should be as neutral as possible at

this point and have no fixed opinion about the lawsuit.

In order to have a fair and lawful trial, there are rules that all jurors

must follow. A basic rule is that jurors must decide the case only on the

evidence presented in the courtroom. You must not communicate with

anyone, including friends and family members, about this case, the people and

places involved, or your jury service. You must not disclose your thoughts

about this case or ask for advice on how to decide this case.

I want to stress that this rule means you must not use electronic devices

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 20

or computers to communicate about this case, including tweeting, texting,

blogging, e-mailing, posting information on a website or chat room, or any

other means at all. Do not send or accept any messages to or from anyone

about this case or your jury service.

You must not do any research or look up words, names, [maps,] or

anything else that may have anything to do with this case. This includes

reading newspapers, watching television or using a computer, cell phone, the

Internet, any electronic device, or any other means at all, to get information

related to this case or the people and places involved in this case. This applies

whether you are in the courthouse, at home, or anywhere else.

Many of you may have cell phones, tablets, laptops, or other electronic

devices with you here in the courtroom.**

**The trial judge should select one of the following two alternative

instructions explaining the rules governing jurors’ use of electronic devices,

as explained in Note on Use 1.

Alternative A: [All cell phones, computers, tablets, or other types of

electronic devices must be turned off while you are in the courtroom. Turned

off means that the phone or other electronic device is actually off and not in a

silent or vibrating mode. You may use these devices during recesses, but even

then you may not use your cell phone or electronic device to find out any

information about the case or communicate with anyone about the case or the

people involved in the case. Do not take photographs, video recordings, or

audio recordings of the proceedings or of your fellow jurors. After each

recess, please double check to make sure your cell phone or electronic device

is turned off. At the end of the case, while you are deliberating, you must not

communicate with anyone outside the jury room. You cannot have in the jury

room any cell phones, computers, or other electronic devices. If someone

needs to contact you in an emergency, the court can receive messages and

deliver them to you without delay. A contact phone number will be provided

to you.]

Alternative B: [You cannot have any cell phones, tablets, laptops, or

other electronic devices in the courtroom. You may use these devices during

recesses, but even then you may not use your cell phone or electronic device to

find out any information about the case or communicate with anyone about

the case or the people involved in the case. Do not take photographs, video

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 21

recordings, or audio recordings of the proceedings or your fellow jurors. At

the end of the case, while you are deliberating, you must not communicate

with anyone outside the jury room. If someone needs to contact you in an

emergency, the court can receive messages and deliver them to you without

delay. A contact phone number will be provided to you.]

What are the reasons for these rules? These rules are imposed because

jurors must decide the case without distraction and only on the evidence

presented in the courtroom. If you investigate, research, or make inquiries on

your own outside of the courtroom, the trial judge has no way to make sure

that the information you obtain is proper for the case. The parties likewise

have no opportunity to dispute or challenge the accuracy of what you find.

That is contrary to our judicial system, which assures every party the right to

ask questions about and challenge the evidence being considered against it

and to present argument with respect to that evidence. Any independent

investigation by a juror unfairly and improperly prevents the parties from

having that opportunity our judicial system promises.

Any 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. A mistrial is a tremendous expense and

inconvenience to the parties, the court, and the taxpayers. If you violate these

rules, you may be held in contempt of court, and face sanctions, such as

serving time in jail, paying a fine or both.

All of your communications with courtroom personnel, or me, will be

part of the record of these proceedings. That means those communications

shall either be made in open court with the court reporter present or, if they

are in writing, the writing will be filed with the court clerk. This means, if you

are outside the courtroom, any communication with me must be in writing,

unsigned, and handed directly to the bailiff. Do not share the content of the

writing with anyone, including other jurors. I have instructed the courtroom

personnel that any communications you have with them outside of my

presence must be reported to me, and I will tell the parties [and their

attorneys] about any communication from you that I believe may be of

interest to the parties [and their attorneys].

However, you may communicate directly with courtroom personnel

about matters concerning your comfort and safety, such as [juror parking]

[location of break areas] [how and when to assemble for duty] [dress] [what

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 22

personal items can be brought into the courthouse or jury room] [list any

other types of routine ex parte communications permitted].

If you become aware of any violation of these instructions or any other

instruction I give in this case, you must tell me by giving a note to the bailiff.

NOTES ON USE FOR 201.2

1. Florida Rule of Judicial Administration 2.451 directs trial judges to

instruct jurors on the use of cell phones and other electronic devices. During the

trial, the trial judge may remove the jurors’ cell phones or other electronic devices.

The trial judge also has the option to allow the jurors to keep the cell phones and

electronic devices during trial until the jurors begin deliberations. Rule 2.451

prohibits jurors from using the cell phones or electronic devices to find out

information about the case or to communicate with others about the case. The

jurors also cannot use the electronic devices to record, photograph, or videotape

the proceedings. In recognition of the discretion rule 2.451 gives trial judges, this

instruction provides two alternatives: (A) requiring jurors to turn off electronic

devices during court proceedings and removing their cell phones and electronic

devices during deliberations; or (B) removing the cell phones and electronic

devices during all proceedings and deliberations. These instructions may be

modified to fit the practices of a trial judge in a particular courtroom. These

instructions are not intended to limit the discretion of the trial court to control the

proceedings.

2. The portion of this instruction dealing with communication with

others and outside research may be modified to include other specified means of

communication or research as technology develops.

3. Florida Rule of Civil Procedure 1.431(i)(2) requires the court, by

pretrial order or statement on the record with opportunity for objection, to set forth

the scope of routine, ex parte communications. Rule 1.431(i)(3) mandates an

instruction during voir dire regarding the limitations on jurors’ communications

with the court and courtroom personnel. The court should make sure that

courtroom personnel are also aware of the limitations on their communications

with jurors.

4. The introduction of the uninsured/underinsured motorist carrier is

required because the plaintiffs are entitled to have the jury know that the joined

carrier is the plaintiffs’ uninsured/underinsured carrier. Lamz v. Geico General

Insurance Co., 803 So. 2d 593 (Fla. 2001); Medina v. Peralta, 724 So. 2d 1188

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 23

(Fla. 1999).

(Revised November 16, 2017)

201.3 EXPLANATION OF THE VOIR DIRE PROCESS

Voir Dire:

The last thing I want to do, before we begin to select the jury, is to

explain to you how the selection process works.

Questions/Challenges: This is the part of the case where the parties and

their lawyers have the opportunity to get to know a little bit about you, in

order to help them come to their own conclusions about your ability to be fair

and impartial, so they can decide who they think should be the jurors in this

case.

How we go about that is as follows: First, I’ll ask some general questions

of you. Then, each of the lawyers will have more specific questions that they

will ask of you. After they have asked all of their questions, I will meet with

them and they will tell me their choices for jurors. Each side can ask that I

exclude a person from serving on a jury if they can give me a reason to believe

that he or she might be unable to be fair and impartial. That is what is called

a challenge for cause. The lawyers also have a certain number of what are

called peremptory challenges, by which they may exclude a person from the

jury without giving a reason. By this process of elimination, the remaining

persons are selected as the jury. It may take more than one conference among

the parties, their attorneys, and me before the final selections are made.

Purpose of Questioning: The questions that you will be asked during this

process are not intended to embarrass you or unnecessarily pry into your

personal affairs, but it is important that the parties and their attorneys know

enough about you to make this important decision. If a question is asked that

you would prefer not to answer in front of the whole courtroom, just let me

know and you can come up here and give your answer just in front of the

attorneys and me. If you have a question of either the attorneys or me, don’t

hesitate to let me know.

Response to Questioning: There are no right or wrong answers to the

questions that will be asked of you. The only thing that I ask is that you

answer the questions as frankly and as honestly and as completely as you can.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 24

You [will take] [have taken] an oath to answer all questions truthfully and

completely and you must do so. Remaining silent when you have information

you should disclose is a violation of that oath as well. If a juror violates this

oath, it not only may result in having to try the case all over again but also can

result in civil and criminal penalties against a juror personally. So, again, it is

very important that you be as honest and complete with your answers as you

possibly can. If you don’t understand the question, please raise your hand and

ask for an explanation or clarification.

In sum, this is a process to assist the parties and their attorneys to select

a fair and impartial jury. All of the questions they ask you are for this

purpose. If, for any reason, you do not think you can be a fair and impartial

juror, you must tell us.

NOTE ON USE FOR 201.3

The publication of this recommended instruction is not intended to intrude

upon the trial judge’s own style and manner of delivery. It may be useful in

cataloging the subjects to be covered in an introductory instruction.

(Revised December 4, 2014)

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 25

B. After Jury Selected and Sworn

202.1 INTRODUCTION

Administer oath:

You have now taken an oath to serve as jurors in this trial. Before we

begin, I am going to tell you about the rules of law that apply to this case and

let you know what you can expect as the trial proceeds.

It is my intention to give you [all] [most] of the rules of law but it might

be that I will not know for sure all of the law that will apply in this case until

all of the evidence is presented. However, I can anticipate most of the law and

give it to you at the beginning of the trial so that you will better understand

what to be looking for while the evidence is presented. If I later decide that

different or additional law applies to the case, I will tell you. In any event, at

the end of the evidence I will give you the final instructions on which you must

base your verdict. At that time, you will have a complete written set of the

instructions so you do not have to memorize what I am about to tell you.

(Continue with the Substantive law, Damages, and General instructions

from the applicable sections of this book, followed by the applicable parts of

202.2 through 202.5)

NOTE ON USE FOR 202.1

The committee recommends giving the jury at the beginning of the trial a

complete as possible set of instructions on the Substantive law, Damages, and

General Instructions.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 26

202.2 EXPLANATION OF THE TRIAL PROCEDURE

Now that you have heard the law, I want to let you know what you can

expect as the trial proceeds.

Opening Statements: In a few moments, the attorneys will each have a

chance to make what are called opening statements. In an opening statement,

an attorney is allowed to give you [his] [her] views about what the evidence

will be in the trial and what you are likely to see and hear in the testimony.

Evidentiary Phase: After the attorneys’ opening statements the plaintiffs

will bring their witnesses and evidence to you.

Evidence: Evidence is the information that the law allows you to see or

hear in deciding this case. Evidence includes the testimony of the witnesses,

documents, and anything else that I instruct you to consider.

Witnesses: A witness is a person who takes an oath to tell the truth and

then answers attorneys’ questions for the jury. The answering of attorneys’

questions by witnesses is called “giving testimony.” Testimony means

statements that are made when someone has sworn an oath to tell the truth.

The plaintiff’s lawyer will normally ask a witness the questions first.

That is called direct examination. Then the defense lawyer may ask the same

witness additional questions about whatever the witness has testified to. That

is called cross-examination. Certain documents or other evidence may also be

shown to you during direct or cross-examination. After the plaintiff’s

witnesses have testified, the defendant will have the opportunity to put

witnesses on the stand and go through the same process. Then the plaintiff’s

lawyer gets to do cross-examination. The process is designed to be fair to both

sides.

It is important that you remember that testimony comes from witnesses.

The attorneys do not give testimony and they are not themselves witnesses.

Objections: Sometimes the attorneys will disagree about the rules for

trial procedure when a question is asked of a witness. When that happens, one

of the lawyers may make what is called an “objection.” The rules for a trial

can be complicated, and there are many reasons for attorneys to object. You

should simply wait for me to decide how to proceed. If I say that an objection

is “sustained,” that means the witness may not answer the question. If I say

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 27

that the objection is “overruled,” that means the witness may answer the

question.

When there is an objection and I make a decision, you must not assume

from that decision that I have any particular opinion other than that the rules

for conducting a trial are being correctly followed. If I say a question may not

be asked or answered, you must not try to guess what the answer would have

been. That is against the rules, too.

Side Bar Conferences: Sometimes I will need to speak to the attorneys

about legal elements of the case that are not appropriate for the jury to hear.

The attorneys and I will try to have as few of these conferences as possible

while you are giving us your valuable time in the courtroom. But, if we do

have to have such a conference during testimony, we will try to hold the

conference at the side of my desk so that we do not have to take a break and

ask you to leave the courtroom.

Recesses: Breaks in an ongoing trial are usually called “recesses.”

During a recess you still have your duties as a juror and must follow the rules,

even while having coffee, at lunch, or at home.

Instructions Before Closing Arguments: After all the evidence has been

presented to you, I will instruct you in the law that you must follow. It is

important that you remember these instructions to assist you in evaluating the

final attorney presentations, which come next, and, later, during your

deliberations, to help you correctly sort through the evidence to reach your

decision.

Closing Arguments: The attorneys will then have the opportunity to

make their final presentations to you, which are called closing arguments.

Final Instructions: After you have heard the closing arguments, I will

instruct you further in the law as well as explain to you the procedures you

must follow to decide the case.

Deliberations: After you hear the final jury instructions, you will go to

the jury room and discuss and decide the questions I have put on your verdict

form. [You will have a copy of the jury instructions to use during your

discussions.] The discussions you have and the decisions you make are usually

called “jury deliberations.” Your deliberations are absolutely private and

neither I nor anyone else will be with you in the jury room.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 28

Verdict: When you have finished answering the questions, you will give

the verdict form to the bailiff, and we will all return to the courtroom where

your verdict will be read. When that is completed, you will be released from

your assignment as a juror.

What are the rules?

Finally, before we begin the trial, I want to give you just a brief

explanation of rules you must follow as the case proceeds.

Keeping an Open Mind: You must pay close attention to the testimony

and other evidence as it comes into the trial. However, you must avoid

forming any final opinion or telling anyone else your views on the case until

you begin your deliberations. This rule requires you to keep an open mind

until you have heard all of the evidence and is designed to prevent you from

influencing how your fellow jurors think until they have heard all of the

evidence and had an opportunity to form their own opinions. The time and

place for coming to your final opinions and speaking about them with your

fellow jurors is during deliberations in the jury room, after all of the evidence

has been presented, closing arguments have been made, and I have instructed

you on the law. It is important that you hear all of the facts and that you hear

the law and how to apply it before you start deciding anything.

Consider Only the Evidence: It is the things you hear and see in this

courtroom that matter in this trial. The law tells us that a juror can consider

only the testimony and other evidence that all the other jurors have also heard

and seen in the presence of the judge and the lawyers. Doing anything else is

wrong and is against the law. That means that you must not do any work or

investigation of your own about the case. You must not obtain on your own

any information about the case or about anyone involved in the case, from any

source whatsoever. This includes reading newspapers, watching television or

using a computer, cell phone, the Internet, any electronic device, or any other

means at all, to get information related to this case or the people and places

involved in this case. This applies whether you are in the courthouse, at home,

or anywhere else. You must not visit places mentioned in the trial or use the

internet to look at maps or pictures to see any place discussed during trial.

Do not provide any information about this case to anyone, including

friends or family members. Do not let anyone, including the closest family

members, make comments to you or ask questions about the trial. Jurors

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 29

must not have discussions of any sort with friends or family members about

the case or the people and places involved. So, do not let even the closest

family members make comments to you or ask questions about the trial. In

this age of electronic communication, I want to stress again that just as you

must not talk about this case face-to-face, you must not talk about this case by

using an electronic device. You must not use phones, tablets, computers or

other electronic devices to communicate. Do not send or accept any messages

related to this case or your jury service. Do not discuss this case or ask for

advice by any means at all, including posting information on an Internet

website, chat room or blog.

No Mid-Trial Discussions: When we are in a recess, do not discuss

anything about the trial or the case with each other or with anyone else. If

attorneys approach you, don’t speak with them. The law says they are to

avoid contact with you. If an attorney will not look at you or speak to you, do

not be offended or form a conclusion about that behavior. The attorney is not

supposed to interact with jurors outside of the courtroom and is only

following the rules. The attorney is not being impolite. If an attorney or

anyone else does try to speak with you or says something about the case in

your presence, please inform the bailiff immediately.

Only the Jury Decides: Only you get to deliberate and answer the verdict

questions at the end of the trial. I will not intrude into your deliberations at

all. I am required to be neutral. You should not assume that I prefer one

decision over another. You should not try to guess what my opinion is about

any part of the case. It would be wrong for you to conclude that anything I say

or do means that I am for one side or another in the trial. Discussing and

deciding the facts is your job alone.

Use of Cell Phones and Electronic Devices in the Courtroom and Jury

Room:*

*The trial judge should select one of the following two alternative

instructions explaining the rules governing jurors’ use of electronic devices,

as explained in Note on Use 3.

Alternative A: [All cell phones or other types of electronic devices must

be turned off while you are in the courtroom. Turned off means that the

phone or other electronic device is actually off and not in a silent or vibrating

mode. You may use these devices during recesses, but even then you may not

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 30

use your phone or electronic device to find out any information about the case

or communicate with anyone about the case or the people involved in the case.

Do not take photographs, video recordings or audio recordings of the

proceedings or your fellow jurors. After each recess, please double check to

make sure your device is turned off. At the end of the case, while you are

deliberating, you must not communicate with anyone outside the jury room.

You cannot have in the jury room any cell phones, computers, or other

electronic devices. If there are breaks in the deliberations, I may allow you to

communicate with your family or friends, but do not communicate about the

case or your deliberations. If someone needs to contact you in an emergency,

the court can receive messages and deliver them to you without delay. The

court’s phone number will be provided to you.]

Alternative B: [You cannot have any cell phones, computers, or other

electronic devices in the courtroom. You may use these devices during

recesses, but even then you may not use your phone or electronic device to

find out any information about the case or communicate with anyone about

the case or the people involved in the case. Do not take photographs, video

recordings or audio recordings of the proceedings or your fellow jurors. At

the end of the case, while you are deliberating, you must not communicate

with anyone outside the jury room. If there are breaks in the deliberations, I

may allow you to communicate with your family or friends, but do not

communicate about the case or your deliberations. If someone needs to

contact you in an emergency, the court can receive messages and deliver them

to you without delay. The court’s phone number will be provided to you.]

NOTES ON USE FOR 202.2

1. This instruction is intended for situations in which at the end of the

case the jury is going to be instructed before closing argument. The committee

strongly recommends instructing the jury before closing argument. If, however, the

court is going to instruct the jury after closing argument, this instruction will have

to be amended.

2. The publication of this recommended instruction is not intended to

intrude upon the trial judge’s own style and manner of delivery. It may be useful in

cataloging the subjects to be covered in an introductory instruction.

3. Florida Rule of Judicial Administration 2.451 directs trial judges to

instruct jurors on the use of cell phones and other electronic devices. During the

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 31

trial, the trial judge may remove the jurors’ cell phones or other electronic devices.

The trial judge also has the option to allow the jurors to keep the cell phones and

electronic devices during trial until the jurors begin deliberations. Rule 2.451

prohibits jurors from using the cell phones or electronic devices to find out

information about the case or to communicate with others about the case. The

jurors also cannot use the electronic devices to record, photograph, or videotape

the proceedings. In recognition of the discretion rule 2.451 gives trial judges, this

instruction provides two alternatives. The trial judge should give the jurors one of

the following alternative instructions: (A) requiring jurors to turn off electronic

devices during court proceedings and removing their phones and electronic devices

during deliberations; or (B) removing the cell phones and electronic devices during

all proceedings and deliberations. These instructions may be modified to fit the

practices of a trial judge in a particular courtroom. These instructions are not

intended to limit the discretion of the trial court to control the proceedings.

4. The portion of this instruction dealing with communication with

others and outside research may be modified to include other specified means of

communication or research as technology develops.

(Revised December 4, 2014)

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 32

202.3 NOTE-TAKING BY JURORS

If you would like to take notes during the trial, you may do so. On the

other hand, of course, you are not required to take notes if you do not want to.

That will be left up to you individually.

You will be provided with a note pad and a pen for use if you wish to

take notes. Any notes that you take will be for your personal use. However,

you should not take them with you from the courtroom. During recesses, the

bailiff will take possession of your notes and will return them to you when we

reconvene. After you have completed your deliberations, the bailiff will collect

your notes, which will be immediately destroyed. No one will ever read your

notes.

If you take notes, do not get so involved in note-taking that you become

distracted from the proceedings. Your notes should be used only as aids to

your memory.

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

evidence and you should not be unduly influenced by the notes of other jurors.

Notes are not entitled to any greater weight than each juror’s memory of the

evidence.

NOTES ON USE FOR 202.3

1. The court should furnish all jurors with the necessary pads and pens

for taking notes. Additionally, it may be desirable for jurors to be furnished with

envelopes to place the notes for additional privacy.

2. Florida Rule of Judicial Administration 2.430(k) provides that at the

conclusion of the trial, the court shall collect and immediately destroy all juror

notes.

3. Florida Rule of Civil Procedure 1.455 provides that the trial court

may, in its discretion, authorize the use of juror notebooks to contain documents

and exhibits as an aid to the jurors in performing their duties.

4. When it is impractical to take exhibits into the jury room, this

instruction should be modified to describe how the jury will have access to the

exhibits.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 33

(Revised February 1, 2018)

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 34

202.4 JUROR QUESTIONS

Questions for the court or courtroom personnel:

During the trial, you may have a question about these proceedings. If

so, please write it down and hand it to the bailiff, who will then hand it to me.

I will review your question with the parties [and their attorneys] before

responding.

Questions for witnesses:

You also may have a question you think should be asked of a witness. If

so, there is a way for you to request that I ask the witness a question. After all

the attorneys have completed their questioning of the witness, you should

raise your hand if you have a question. I will then give you sufficient time to

write the question on a piece of paper, fold it, and give it to the bailiff, who

will pass it to me. Do not put your name on the question, show it to anyone or

discuss it with anyone.

It is important to know that if you have a question you believe should be

asked of a witness, you must raise your hand and request that I ask the

witness the question before the witness leaves the witness stand. You will not

have an opportunity to ask the witness a question once the witness leaves the

courtroom. I will then review the question with the attorneys. Under our law,

only certain evidence may be considered by a jury in determining a verdict.

You are bound by the same rules of evidence that control the attorneys’

questions. If I decide that the question may not be asked under our rules of

evidence, I will tell you. Otherwise, I will direct the question to the witness.

The attorneys may then ask follow-up questions if they wish. If there are

additional questions from jurors, we will follow the same procedure again.

By providing this procedure, I do not mean to suggest that you must or

should submit written questions for witnesses. In most cases, the lawyers will

have asked the necessary questions.

NOTES ON USE FOR 202.4

1. Florida Rule of Civil Procedure 1.431(i)(3) requires an instruction that

jurors’ questions must be submitted in writing to the court, which will review them

with the parties and counsel before responding. Rule 1.431 does not prevent jurors

from asking the bailiff about routine matters affecting comfort and safety. The

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 35

committee notes to rule 1.431 recognize that this instruction may need to be

modified to reflect that individual trial judges may have reasonable differences

regarding the type of communications considered routine.

2. Florida Rule of Civil Procedure 1.452 mandates that jurors be

permitted to submit written questions directed to witnesses or the court.

(Revised November 16, 2017)

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 36

202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH

TRANSLATION/INTERPRETATION

[A] [Some] witness[es] may testify in (language to be used) which will be

interpreted in English.

The evidence you are to consider is only that provided through the

official court interpreters. Although some of you may know (language used), it

is important that all jurors consider the same evidence. Therefore, you must

accept the English interpretation. You must disregard any different meaning.

If, however, during the testimony there is a question as to the accuracy

of the English interpretation, you should bring this matter to my attention

immediately by raising your hand. You should not ask your question or make

any comment about the interpretation in the presence of the other jurors, or

otherwise share your question or concern with any of them. I will take steps to

see if your question can be answered and any discrepancy resolved. If,

however, after such efforts a discrepancy remains, I emphasize that you must

rely only upon the official English interpretation as provided by the court

interpreter and disregard any other contrary interpretation.

NOTE ON USE FOR 202.5

When instructing the jury at the beginning of the trial, this instruction should

be used in lieu of 601.3. See United States v. Franco, 136 F.3d 622, 626 (9th Cir.

1998); United States v. Fuentes-Montijo, 68 F.3d 352, 355–56 (9th Cir. 1995). For

an example, see Model Instruction No. 1.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 37

SECTION 300 — EVIDENCE INSTRUCTIONS

301.1 Deposition Testimony, Interrogatories, Stipulated Testimony,

Stipulations, and Admissions

301.2 Instruction when First Item of Documentary, Photographic, or

Physical Evidence Is Admitted

301.3 Instruction when Evidence Is First Published to Jurors

301.4 Instruction Regarding Visual or Demonstrative Aids

301.5 Evidence Admitted for a Limited Purpose

301.6 Jury to Be Guided by Official English

Translation/Interpretation

301.7 Jury to Be Guided by Official English Transcript of Recording

in Foreign Language (Accuracy Not in Dispute)

301.8 Jury to Be Guided by Official English

Translation/Interpretation — Transcript of Recording in

Foreign Language (Accuracy in Dispute)

301.9 Disregard Stricken Matter

301.10 Instruction Before Recess

301.11 Failure to Maintain Evidence or Keep a Record

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 38

301.1 DEPOSITION TESTIMONY, INTERROGATORIES,

STIPULATED TESTIMONY, STIPULATIONS,

AND ADMISSIONS (from 1.13(a))

a. Deposition or prior testimony:

Members of the jury, the sworn testimony of (name), given before trial,

will now be presented. You are to consider and weigh this testimony as you

would any other evidence in the case.

b. Interrogatories:

Members of the jury, answers to interrogatories will now be read to

you. Interrogatories are written questions that have been presented before

trial by one party to another. They are answered under oath. You are to

consider and weigh these questions and answers as you would any other

evidence in the case.

c. Stipulated testimony:

Members of the jury, the parties have agreed that if (name of witness)

were called as a witness, [he] [she] would testify (read or describe the

testimony). You are to consider and weigh this testimony as you would any

other evidence in the case.

d. Stipulations:

Members of the jury, the parties have agreed to certain facts. You must

accept these facts as true. (Read the agreed facts).

e. Admissions:

1. Applicable to all parties:

Members of the jury, (identify the party or parties that have admitted the

facts) [has] [have] admitted certain facts. You must accept these facts as true.

(Read the admissions).

2. Applicable to fewer than all parties:

Members of the jury, (identify the party or parties that have admitted the

facts) [has] [have] admitted certain facts. You must accept these facts as true

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 39

in deciding the issues between (identify the affected parties), but these facts

should not be used in deciding the issues between (identify the unaffected

parties). (Read the admissions).

NOTE ON USE FOR 301.1

The committee recommends that the appropriate explanation be read

immediately before a deposition, or an interrogatory and answer, stipulated

testimony, a stipulation, or an admission are read in evidence, and that no

instruction on the subject be repeated at the conclusion of the trial.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 40

301.2 INSTRUCTION WHEN FIRST ITEM OF DOCUMENTARY,

PHOTOGRAPHIC, OR PHYSICAL

EVIDENCE IS ADMITTED

The (describe item of evidence) has now been received in evidence.

Witnesses may testify about or refer to this or any other item of evidence

during the remainder of the trial. This and all other items received in evidence

will be available to you for examination during your deliberations at the end

of the trial.

NOTE ON USE FOR 301.2

This instruction should be given when the first item of evidence is received

in evidence. It may be appropriate to repeat this instruction when items received in

evidence are not published to the jury. It may be combined with 301.5 in

appropriate circumstances. It may also be given in conjunction with 301.4 if a

witness has used exhibits which have been admitted in evidence and demonstrative

aids which have not.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 41

301.3 INSTRUCTION WHEN EVIDENCE IS FIRST PUBLISHED TO

JURORS

The (describe item of evidence) has been received in evidence. It is being

shown to you now to help you understand the testimony of this witness and

other witnesses in the case, as well as the evidence as a whole. You may

examine (describe item of evidence) briefly now. It will also be available to you

for examination during your deliberations at the end of the trial.

NOTE ON USE FOR 301.3

This instruction may be given when an item received in evidence is handed

to the jurors. It may be combined with 301.5 in appropriate circumstances.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 42

301.4 INSTRUCTION REGARDING VISUAL

OR DEMONSTRATIVE AIDS

a. Generally:

This witness will be using (identify demonstrative or visual aid(s)) to assist

in explaining or illustrating [his] [her] testimony. The testimony of the witness

is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is]

[are] not to be considered as evidence in the case unless received in evidence,

and should not be used as a substitute for evidence. Only items received in

evidence will be available to you for consideration during your deliberations.

b. Specially created visual or demonstrative aids based on disputed

assumptions:

This witness will be using (identify demonstrative aid(s)) to assist in

explaining or illustrating [his] [her] testimony. [This] [These] item[s] [has]

[have] been prepared to assist this witness in explaining [his] [her] testimony.

[It] [They] may be based on assumptions which you are free to accept or

reject. The testimony of the witness is evidence; however, [this] [these]

(identify demonstrative or visual aid(s)) [is] [are] not to be considered as

evidence in the case unless received in evidence, and should not be used as a

substitute for evidence. Only items received in evidence will be available to

you for consideration during your deliberations.

NOTES ON USE FOR 301.4

1. Instruction 301.4a should be given at the time a witness first uses a

demonstrative or visual aid which has not been specially created for use in the

case, such as a skeletal model.

2. Instruction 301.4b is designed for use when a witness intends to use

demonstrative or visual aids which are based on disputed assumptions, such as a

computer-generated model. This instruction should be given at the time the witness

first uses these demonstrative or visual aids. This instruction should be used in

conjunction with 301.3 if a witness uses exhibits during testimony, some of which

are received in evidence, and some of which are not.

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 43

301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE

The (describe item of evidence) has now been received into evidence. It

has been admitted only [for the purpose of (describe purpose)] [as to (name

party)]. You may consider it only [for that purpose] [as it might affect (name

party)]. You may not consider that evidence [for any other purpose] [as to [any

other party] [(name other party(s)].

February 1, 2018 Florida Standard Jury Instructions in Civil Cases 44

301.6 JURY TO BE GUIDED BY OFFICIAL ENGLISH

TRANSLATION/INTERPRETATION

Introduction:

The law requires that the court appoint a qualified interpreter to assist

a witness who does not readily speak or understand the English language in

testifying. The interpreter does not work for either side in this case. [He] [She]

is completely neutral in the matter and is here solely to assist us in

communicating with the witness. [He] [She] will repeat only what is said and

will not add, omit, or summarize anything. The interpreter in this case is

(name of interpreter). The oath will now be administered to the interpreter.

Oath to Interpreter:

Do you solemnly swear or affirm that you will make a true

interpretation to the witness of all questions or statements made to [him] [her]

in a language which that person understands, and interpret the witness’s

statements into the English language, to the best of your abilities [so help you

God]?

Foreign Language Testimony:

You are about to hear testimony of a witness who will be testifying in

(language used). This witness will testify through the official court interpreter.

Although some of you may know (language used), it is important that all jurors

consider the same evidence. Therefore, you must accept the English

translation of the witness’s testimony. You must disregard any different

meaning.