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Arkansas
Model Jury Instructions-Civil, first published in
1965, were an important innovation in the jury trial
process in Arkansas. They were the work of an Arkansas
Supreme Court Committee first constituted on February
12, 1962. This Arkansas effort was a part of a national
reform movement to develop patterned instructions
to simplify and clarify the submission of instructions
to a jury, and to reduce legal error in the jury trial
process. At the time of this pioneering work in Arkansas,
only five states were utilizing pattern instructions
although 20 other states had committees similar to
the Arkansas committee at work. The first chairman
of the Arkansas Supreme Court Committee on Jury Instructions,
Judge Paul Wolfe, wrote in his introduction to the
first edition, Arkansas Model Jury Instructions-Civil
(1965):
In
recent years, the inadequacies of the jury instruction
system over the nation
compelled attention, and dedicated men in all ranks
of the profession have
thrown the light of publicity upon the consequences.
This scrutiny has exposed
injustices and economic waste visited not only upon
the profession and
the litigants, but also upon the tax paying public.
As a result we have become
aware that it is not only good sense, but good business
to re- examine
the matter of jury instructions, and to evaluate them
through critical
eyes rather than in the soft light of tradition and
accepted form.
The initial set of instructions
prepared by this pioneer group concerned primarily
tort cases and patterned instructions primarily under
Arkansas common law. Their task was monumental. They
met, generally for two days each month, over a period
of approximately three years. The Committee was selected
from the Bar throughout the state and reflected not
only regional diversity, but also practice diversity.
Those lawyers generally representing plaintiffs were
balanced by lawyers who generally sat on the other
side of the courtroom. Among the members of the Committee
was Justice George Rose Smith, who sat on the Arkansas
Supreme Court as instructions were being drafted.
That practice has now been abandoned with the Court
determining that active participation by a Supreme
Court Justice or Court of Appeals Judge in the drafting
may impair the appearance of impartiality if an instruction
is challenged in a subsequent appeal, or incorrectly
indicate prior approval of an instruction by the Court
before it has considered the instruction in the context
of actual litigation.
The confidence that
the Arkansas Supreme Court placed in that Committee
and its successors is reflected in a per curiam Order
entered by the Supreme Court of Arkansas on April
19, 1965, in anticipation of the publication of the
first AMI:
If
Arkansas Model Jury Instructions (AMI) contains an
instruction applicable
in a civil case, and the trial judge determines that
the jury should be
instructed on the subject, the AMI instruction shall
be used unless the trial judge
finds that it does not accurately state the law. In
that event he will state his
reasons for refusing the AMI instructions. When AMI
does not contain an instruction
on a subject upon which the trial judge determines
that the jury should
be instructed, or when an AMI cannot be modified to
submit the issue, the
instruction on that subject should be simple, brief,
impartial, and free from argument.
This order, of course,
gives a presumption of authority to a published AMI
instruction. An instruction as published may be modified
or challenged, but only with a competent substitute
and after making a showing that it does not accurately
state the law.
This first AMI Committee
was remarkably successful. Soon, an AMI volume was
in every trial lawyer's briefcase and, upon the publication
of the second edition in 1973, the Supreme Court in
expressing its gratitude to the service of the AMI
Committee noted, "The decrease in reversals of
Circuit Court civil cases because of faulty instructions
can, of course, be attributed to the use of AMI Instructions
as set out in the original edition." Letter,
October 17, 1973, at III, Arkansas Model Jury Instructions-Civil,
(2nd ed. 1974). The splendid work of this initial
committee was noted in the Dedication to Arkansas
Model Jury Instructions-Civil, (4th ed. 1999) when
Chairman H. David Blair noted "...the genius,
foresight, and industry of the original committee
appointed by the Arkansas Supreme Court that published
the first edition in 1965."
During the late 1990's,
there was recognition that commercial cases were increasing
and taking on greater significance in the Arkansas
courts. Members of the Supreme Court reflected the
interests of Arkansas lawyers in urging that the AMI
Committee expand its attention to commercial cases.
The Business Law Section of the Arkansas Bar Association
created a Jury Instruction Subcommittee and stepped
out ahead of the AMI Committee by publishing proposed
model instructions for contract cases and fraud cases.
See William A. Waddell, Jr., et al., Proposed
Arkansas Model Contract Jury Instructions, 20
U. Ark. Little Rock L.J. 1 (1997); Charles D. Harrison
et al., Proposed Arkansas Model Fraud Jury Instructions,
20 U. Ark. Little Rock L.J. 51 (1997).
The first instruction
on the tort of deceit or fraud (AMI 402) appeared
in the Third Edition published in 1989. The Fourth
Edition, published in 1999, revised the instruction
on interference with contractual relationships or
business expectancy (AMI 403-404) to encompass the
teaching of the only Supreme Court decision that had
found an AMI instruction legally infirm. See Mason
v. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d
160 (1998). A new chapter was created encompassing
the intentional torts (Chapter 4) and defamation (AMI
407- 412). The common law torts of libel and slander
were subsumed under this set of model instructions,
which addressed in an innovative fashion the First
Amendment issues inhering in such claims.
The 2001 Pocket Part
for the Fourth edition introduced the bulk of the
"new" commercial litigation instructions.
Most of those instructions were the contract instructions
now contained in Chapter 24. The organization of those
instructions, sequentially as a case would be presented,
facilitates not only instruction selection, but also
case analysis. Of particular utility is the introduction
to the Contract Interpretation instructions (AMI 2412-2424).
That introduction provides clear guidance to practitioners
and the courts that an ambiguity resolvable by extrinsic
fact must be found by the court before interpretation
instructions are to be submitted.
The Committee also addressed
statutory commercial causes of action with the publication
of this Pocket Part. The newly published instructions
were for civil claims under the Arkansas Trade Secrets
Act (Chapter 26), the Arkansas Securities Act (Chapter
27), the Franchise Practices Act (Chapter 28), and
the Deceptive Trade Practices Act (Chapter 29). Some
of the statutory claims were particularly challenging
to the Committee. Statutory language is not always
enacted because of its intelligibility. Because it
is statutory, however, the Committee often felt constrained
in adapting such language to common usage.
The 2002 Pocket Part
introduced instructions under Article 2 of the Uniform
Commercial Code (Chapter 25), and those instructions
were expanded with the publication of the 2003 Pocket
Part. That publication also introduced comprehensive
instructions concerning invasion of privacy (AMI 420-424).
In the last two years
the Committee has continued its diligence, and is
undertaking a comprehensive review and revision of
comments associated with instructions. Those comments
had often become simply accretions from a succession
of Committee reviews rather than a cogent explication
of the authorities underpinning and commenting on
the instruction. Additionally, the Committee has initiated
a foray into banking litigation with the publication
in the 2007 Edition of a new chapter entitled Bank
Deposits and Collections (Chapter 30).
The litigation process
in Arkansas has been well served by the 44 years of
effort by the Bench and Bar in the development of
pattern instructions. Pattern instructions provide
the practitioner and the bench with not only language
to instruct a jury, but also a desk reference for
case analysis. Jurors receive instructions that are
coherent and intelligible. The appellate bench is
spared appeal and error based upon faulty instructions.
These achievements have
been made by a continuing partnership between the
private bar and the courts. Although a sitting Supreme
Court Justice no longer serves on the AMI Committee,
trial judges have consistently been among its members.
The Supreme Court has appointed a Justice as a liaison
between the Court and the Committee, and he is available
to provide guidance and resources. In recent years,
the liaison Justice for the AMI Committee has been
the Honorable Donald L. Corbin. In addition, the Court
has made available the resources of the Administrative
Office of the Courts. A staff member of that Office,
Larry Brady, Esq., has served with the Committee as
a deliberating member as well as to provide administrative
resources.
The Supreme Court's
laudable determination to ensure that its Committees
are leavened with new blood caused the Court to place
term limits on its standing committees. That worthwhile
endeavor threatened the loss, however, of institutional
memory. During a deliberative setting such as that
in which the AMI Committee functions, efficiency comes
when arguments do not have to be repeated and disagreement
resolution processes are well understood. When new
members are appointed, inevitably conversations are
repeated and internal standards are rehashed to forge
a new consensus. Some continuity in deliberations
has been provided by the Court's authorization of
the appointment of a Reporter whose tenure on the
Committee is not limited. That position presently
is filled by Professor Donald P. Judges, who is on
the faculty of the University of Arkansas School of
Law.
Another innovation seems
to have served the Committee well. Throughout its
history, the AMI Committee has sought input from the
sitting bench and the practicing Bar. Technology has
facilitated that input with the posting of the instructions
while in draft form on the Court's website (http://www.courts.state.ar.us).
Another change, driven in part by technology, has
not been uniformly viewed as felicitous. At the insistence
of the publisher, Thomson-West, the 2004 Edition of
Arkansas Model Jury Instructions-Civil changed from
a hard bound volume to a pamphlet. That change was
acquiesced in by the Committee because of assurances
that the overall cost to the practitioner would not
increase, and because it provided the opportunity
to integrate updates as they are made. AMI was already
published in electronic format, and with annual pamphlet-type
volumes, the physical version now corresponds to the
electronic version. No longer does the practitioner
or the judge have to refer to a Pocket Part for changes
in instructions, new instructions, or supplements
to the comments.
The achievements in
pattern instruction in Arkansas compare favorably
with resources available to members of the Bar in
other states. A survey of pattern instructions published
in other states reveals that fourteen have instructions
that pertain to contracts. No state, with the possible
exception of Michigan, has instructions that are as
comprehensive as those in AMI pertaining to actions
under the Uniform Commercial Code. While states have
adopted instructions pertaining to business torts,
antitrust, and trade secrets, none has addressed the
number of statutory causes of action addressed in
AMI.
Concern about the functionality
of the jury decision process continues, notwithstanding
the development of pattern instructions in both the
state and the federal courts. A new reform movement
argues that the language used with juries remains
arcane and unintelligible. This movement, known as
the "plain language" movement, urges that
instructions be further revised to speak in the vernacular.
See Bettina E. Brownstein, It's Time to
Make Jury Instructions Understandable, 37 Arkansas
Lawyer 24 (2002). Technical writing systems, including
those used by the military and the private sector
in the preparation of industrial manuals, analyze
vocabulary and make predictions about the intelligibility
of written instructions. This discipline could be
instructive to the bench and the bar in achieving
further clarity in its communications with laymen.
Leon Green, who received
his undergraduate education in Arkansas, served as
Dean of Northwestern Law School from 1929 to 1947,
and then taught torts at the University of Texas School
of Law until shortly before his death in 1979, contended
that the jury instruction process was largely a means
for appellate courts to control jury outcomes. He
contended the formulations were created for appellate
control of the jury decision making and not to elicit
understanding and thoughtful judgment from laymen.
See L. Green, The Litigation Process in Tort Law 371
(1965). That cynicism does not, however, dominate
the profession. The Arkansas Supreme Court and its
committees on Model Jury Instructions strive to create
instructions that, while consistent with legal principles,
permit laymen to decide cases in an effort to achieve
the judgment of peers, which our system recognizes
to be as close to true justice as a mere mortal can
achieve. That ongoing effort is the reason that, when
I expressed thanks to all who had served on the AMI
Committee during my tenure as Chairman in the final
Preface to an AMI Edition, I wrote in November 2004,
part of my gratitude was because, "…[e]ach
has by example reassured me that our profession seeks
to achieve excellence and promote the common good."•
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