WHILE NOT THE first state in the country to produce them, California’s recently issued plain-English civil jury instructions are bound to have an impact, as they have been declared the official jury instructions for the largest court system in the nation.

In the works for more than six years, a task force developed 800 plain-language jury instructions. The group used psycholinguistics and jury research to identify communication failures in traditional, jargon-laded instructions.

For example, research involving jurors in Washington, D.C. found that many could not define or—worse—misunderstood familiar legal terms. "More than half [of the jurors in the study] could not define ‘speculate’," wrote Judge Ward in the Judicature article. "About a quarter selected the wrong answers for ‘burden of proof,’ ‘impeach,’ ‘admissible evidence,’ and ‘inference.’ Most tellingly, however, more than one-half thought that ‘preponderance of the evidence’ meant a slow, careful pondering of the evidence."

"The legal profession takes for granted the length and complexity of jury instructions," Ward wrote, "but to the average lay person, the instructions are overwhelming. In California, the use of language from appellate opinions, which are written for an audience of lawyers, not jurors, was a root cause of the problem. The language was complex, ponderous, and subject to special meaning."

The task force eventually decided to abandon the Book of Approved Jury Instructions (BAJI) in use for decades to write an entirely new set of instructions. (The civil instructions were released in 2003; the criminal instructions are due for completion in 2005.)

Experts in legal specialties vetted the instructions and many lawyers and organizations commented on drafts. An editorial staff made technical corrections and stylistic edits, and ran readability checks to test for clarity. The task force aimed for a 10th-grade level of complexity in language.

"Throughout the process the task force followed a style manual containing rules of composition derived from linguists who have analyzed jury instruction comprehensibility," Ward wrote. "This central drafting goal was plain English that accurately states the law. To that end, statutes and cases were not just quoted — the legal concepts were translated into their plain-English equivalents. Some examples follow:

• Instead of saying, "acting under color of law," the task force said, "acting or purporting to act in the performance of official duties;"
• "circumstantial evidence" became "indirect evidence;"
• "preponderance of the evidence" became "more likely to be true than not true;"
• "peculiar risk" became "special risk;"
• "ostensible agent" became "apparent agent."

Among other innovations:

• Instructions were drawn up to encourage judges to refer to the parties by name;
• burdens of proof for claims and affirmative defenses were incorporated into the instructions, as opposed to designation of all the burdens of proof in a single instruction; and,
• all affirmative defenses have the term "affirmative defense" in the title to make it clear the defendant has the burden of proof.

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