James v. RD AMERICA, LLC

         ANNOTATED POST-TRIAL JURY INSTRUCTIONS (Revised and with Redlines)

         TABLE OF CONTENTS INTRODUCTION ............................................................................................................................. 4

         I. GENERAL INSTRUCTIONS .................................................................................................. 5

         A. ROLE OF THE COURT ........................................................................................................... 5

         B. INSTRUCTIONS TO BE CONSIDERED AS A WHOLE ...................................................... 5

         C. BOTH SIDES ENTITLED TO FULL AND FAIR HEARING ................................................ 6

         D. OBJECTIONS AND RULINGS .............................................................................................. 6

         E. DUTIES OF THE JURY ........................................................................................................... 7

         F. “PROVE”, “FIND”, AND “ESTABLISH ................................................................................ 8

         G. BURDEN OF PROOF - PREPONDERANCE OF THE EVIDENCE ...................................... 9

         H. FORMS OF EVIDENCE ........................................................................................................ 10

         I. WHAT IS NOT EVIDENCE .................................................................................................. 10

         J. DIRECT & CIRCUMSTANTIAL EVIDENCE ..................................................................... 11

         K. INFERENCE DEFINED ........................................................................................................ 12

         L. WITNESS CREDIBILITY - GENERAL ............................................................................... 13

         M. ALL PERSONS STAND EQUAL BEFORE THE LAW ....................................................... 14

         N. IMPEACHMENT OF WITNESS ........................................................................................... 14

         O. UNCONTRADICTED TESTIMONY ................................................................................... 14

         II. THE ISSUES AND CLAIMS IN THIS CASE ..................................................................... 16

         A. TITLE VII ............................................................................................................................... 16

         B. ELEMENTS OF A TITLE VII HOSTILE WORK ENVIRONMENT CLAIM ..................... 17

         1. Unwelcome Harassment, Ridicule, Insult, or Other Abusive Conduct .............................. 17

         2. Motivated, at Least in Part, by Race .................................................................................. 18

         3. Severe or Pervasive ............................................................................................................ 20

a. Objective Component .................................................................................................... 20

b. Subjective Component .................................................................................................. 23

         4. Employer's Liability .......................................................................................................... 24

a. Co-Worker vs. Supervisor ............................................................................................. 24

b. Employer's Liability For Actions Of Supervisors ........................................................ 25

c. Employer's Liability for Actions of Co-Workers ......................................................... 26

         III. DAMAGES ............................................................................................................................... 28

         A. GENERAL INSTRUCTIONS ON DAMAGES ..................................................................... 28

         B. COMPENSATORY DAMAGES .......................................................................................... 29

1. Lost Income or Backpay ................................................................................................ 3030

2. Emotional Distress ......................................................................................................... 3030

         C. NOMINAL DAMAGES ........................................................................................................ 30

         D. PUNITIVE DAMAGES ......................................................................................................... 31

         IV. FINAL INSTRUCTIONS ....................................................................................................... 33

         A. NOTE TAKING ..................................................................................................................... 33

         B. UNANIMOUSVERDICT ..................................................................................................... 33

         C. FOREPERSON AND DELIBERATIONS ............................................................................. 34

         D. VERDICT FORM ................................................................................................................... 34

         E. ADDITIONAL INSTRUCTIONS ......................................................................................... 35

         INTRODUCTION

         Members of the jury, you now have heard all of the evidence. I now will instruct you about the law applicable to this case. After these instructions, you will hear the closing arguments of counsel, and I will provide some final instructions. You then will return to the jury room to deliberate in accordance with these instructions. But first, I want to express my gratitude to each of you for the time and energy you have devoted to this trial. Jury service is rarely convenient, but without you, justice could not be done in this case. Thank you.

         It will take some time for me to read these instructions to you, but it is important for you to listen carefully. I will go as slowly as I can and be as clear as possible. At the start of the trial, I told you that your principal function was to listen carefully and observe each witness who testified. I ask you to give that same careful attention, as I instruct you on the law. You have been provided with a copy of my instructions so that you can read along as we go. Please feel free to write on these copies. You will be permitted to take them into the jury room with you.

         My instructions will be in three parts. First, I will discuss general rules concerning the role of the court and the duty of the jury. Second, I will go over the issues in this case and set out the specific questions of fact that you must answer based on the evidence at trial. Third, I will give you some rules and guidelines for your deliberations.

         Before we begin, I ask you to look over the other document that was placed on your seats-namely, the Verdict Form. After I have given these instructions and you hear the closing arguments of counsel, you will go back into the jury room to deliberate. You will have with you the following: the original of the Verdict Form, copies of the original exhibits, your copies of these instructions, and any personal notes that you may have taken. At the conclusion of your deliberations, you will use the Verdict Form to report your verdict to the court and the parties.

         I. GENERAL INSTRUCTIONS

         A. ROLE OF THE COURT

         As the judge, I perform two basic functions during the trial. First, I decide what evidence you may consider. You have heard me doing that throughout the trial. Second, I instruct you on the law that you are to apply to the facts in this case. I gave you some preliminary instructions before trial began, and some during the course of the trial, but it is now-at the close of evidence-that the final instructions are given, so please be patient and listen closely. If, in closing arguments, the parties state the law differently from the way I am explaining it to you, you are to follow my instructions.

         I believe that everything I am going to tell you now is consistent with the preliminary instructions I gave you at the start of the trial, but if you have any doubt, you should not rely on anything different I may have said in the preliminary instructions. The instructions I am giving you now must guide your deliberations in this case.

         B. INSTRUCTIONS TO BE CONSIDERED AS A WHOLE

         This is a long instruction, and I may repeat certain parts. That does not mean that those parts should be emphasized. You should not single out any one part of my instructions and ignore the rest. Instead, you should consider all of the instructions as a whole and consider each instruction in light of all the others. The order in which I give you instructions does not indicate their relative importance. Do not read into these instructions, or into anything I have said or done, any suggestion about what verdict you should return-that is a matter for you alone to decide.

         I should also point out to you that, although you have been given a copy of the instructions to follow as I deliver them, if I say aloud anything at all different from what is written, you must follow what I say here in court.

         C. BOTH SIDES ENTITLED TO FULL AND FAIR HEARING

         Regardless of your ultimate decision about the parties' claims and defenses, the parties in this case are entitled to a full and fair hearing. The parties are entitled to a trial free from prejudice or bias. Our justice system cannot work unless you reach your verdict through a fair and impartial consideration of the evidence, regardless of the final outcome of the case.

         It is your duty, therefore, to give careful thought to every issue set forth by these instructions, regardless of any general feeling that you may have about which party is right. In deciding the facts or applying the law as I have given it to you, you must not be swayed by bias or prejudice for or against any party. All persons and all institutions stand equal before the law and are to be dealt with as equals in a court of justice, regardless of who they are. You must not be swayed by your personal opinions about any of the issues raised in this trial. You should not be swayed by sympathy. You should be guided solely by the evidence presented during trial and the law that I give you, without regard to the consequences of your verdict.

         D. OBJECTIONS AND RULINGS

         Our courts operate under an adversary system in which we believe that the truth will emerge through the competing presentations of adverse parties. It is the role of attorneys to press as hard as they can for their respective positions, and in fulfilling that role, they have a duty to object to the introduction of evidence that they believe is not properly admissible. You should not prefer or dislike an attorney or a party because an attorney did or did not make objections during the trial. The application of the rules of evidence is not always clear, and lawyers often disagree about them. It has been my job as the judge to resolve these disputes during the course of the trial.

         It is important for you to realize, however, that my rulings on evidentiary matters have nothing to do with the ultimate merits of the case, and are not to be considered as a preference for one side or the other. You are not to concern yourself with why a lawyer made an objection or why I ruled on it in the manner that I did. You should draw no inference from the fact that a lawyer objected to evidence. Nor should you draw any inference from the fact that I might have sustained or overruled an objection. My rulings on objections have nothing to do with the merits of the case or with the credibility of the witnesses If I have allowed testimony or evidence that an attorney objected to, you should not give that evidence greater or lesser weight. If I have sustained an objection to a question asked of a witness, you must disregard the question entirely, and may draw no inference from the question, nor speculate about what the witness would have said, if he or she had been permitted to answer the question. You must disregard any testimony that I have stricken, because it is not evidence. Finally, if I instructed you to consider an item of evidence for a limited purpose only, you must follow that limiting instruction and use the evidence only for the limited purpose for which it was admitted.

         One further note about attorneys: during the course of the trial, one cannot help but recognize the various personalities and styles of the attorneys. But it is important for you as jurors to recognize that this is not a contest among attorneys. Whatever you may think about the conduct of the lawyers during this trial, you must remember that this dispute is about the parties, not the lawyers, and you must decide this case solely on the basis of the evidence. Remember, statements and characterizations of the evidence by the attorneys are not evidence. If you find their closing arguments to be helpful, take advantage of them, but it is your memory, your evaluation of the evidence, and my instructions on the law that matter in this case

         E. DUTIES OF THE JURY

         As members of the jury, you are the sole and exclusive judges of the facts. It is your duty to find the facts from all of the evidence in the case. You determine the credibility of witnesses. You resolve any conflicts that may exist in the testimony. You draw whatever reasonable inferences you decide should be drawn from the facts you determine, and you weigh the evidence.

         No one may invade your province or function as jurors. Because you are the sole and exclusive judges of the facts, I do not mean to indicate, in this charge or at any time during the trial, any opinion as to the facts or as to what your verdict should be. My rulings on the admissibility of evidence during the trial are not any indication of a view of what your decision should be or which party should prevail in this case, because I have no view on those matters.

         In order to determine the facts, you must rely upon your own recollection of the evidence. In reaching a verdict, you must carefully and impartially consider all of the evidence in the case and then apply the law, as I have explained it to you. Regardless of any opinion you may have about what the law is or ought to be, it would be a violation of your sworn duty to base a verdict upon any understanding or interpretation of the law other than the one I give you. You must do your duty as jurors regardless of any personal likes, dislikes, opinions, prejudices, or sympathies that you may have. In other words, you must decide the case solely on the evidence before you, and you must do so fairly and impartially.

         You must reach a unanimous verdict; that is, a verdict agreed upon by each of you. You must each decide the case for yourself, but do so only after impartial consideration of the evidence in the case with your fellow jurors.

         F. “PROVE”, “FIND”, AND “ESTABLISH

         Throughout the remainder of my instructions to you, I will use the word “prove” when talking about what Ms. James must do in order to win this case. My use of the word “prove” means “prove by the appropriate burden of proof, ” even if I do not always repeat those words. Similarly, when I speak of your “finding” various facts or the parties “establishing” various facts, you must determine whether those facts have been proven by the appropriate burden of proof, even if I simply use the word “find” or “establish.”

         G. BURDEN OF PROOF - PREPONDERANCE OF THE EVIDENCE

         Because this is a civil case, Ms. James has the burden of proving every disputed element of her claims by a preponderance of the evidence.

         To establish a fact by a preponderance of the evidence, the party with the burden of proof must prove that the fact is more likely true than not true. You will recall the example I gave you at the beginning of this trial of the scales of justice. For the plaintiff's claims, if you find that the credible evidence on a given issue is evenly divided between the plaintiff and the defendant, or tips in favor of the defendant, then you must decide that issue for that defendant. However, if the plaintiff proves that a fact is more likely true than not, even if only slightly more likely true than not, then you are to find that the plaintiff has proven that fact by a preponderance of the evidence.

         In determining whether a claim has been proven by a preponderance of the evidence, you may consider the testimony of all witnesses, regardless of who may have called them, and all the exhibits received in evidence, regardless of who may have presented them. A preponderance of the evidence means the greater weight of the evidence; it refers to the quality and persuasiveness of the evidence, not to the number of witnesses or documents presented.

         Some of you may have heard of proof beyond a reasonable doubt, which is the proper standard of proof in a criminal trial. That requirement does not apply to a civil case such as this, and you should not consider or discuss that standard in your deliberations.

         H. FORMS OF EVIDENCE

         Next, I want to discuss with you generally what we mean by evidence and how you should consider it. The evidence from which you are to decide what the facts are comes in a few forms:

         First, there is the sworn testimony of witnesses, both on direct examination and cross-examination, and regardless of who called the witness.

         Second, there are the exhibits that have been received into the trial record. All of the exhibits that have been admitted into evidence will be with you in the jury room. If an exhibit has been admitted into evidence, it is evidence that can be considered by you, regardless of whether any witness referred to the exhibit or testified about it during the trial.

         One word about the exhibits that you will have in the jury room. You may notice that certain exhibit numbers have not been used. For example, you may find exhibit number 5 and number 7 but not find number 6. Please do not be concerned about the numerical sequencing of exhibits and do not think that an exhibit is missing. The reason for what would otherwise seem like gaps is that we assigned all of the potential trial exhibits numbers long before trial, and then before or during trial, counsel decided not to introduce certain exhibits or certain exhibits were simply marked for identification purposes and then not made full exhibits. We have checked ...