Uniform Jury Instructions Supplements Coming Soon

jury instructions, scales of justice and gavel on law books with bookshelves in the backgroundThe uniform jury instructions committees are charged with the task of developing uniform jury instructions for use in civil and criminal trials. They must also promote better coordination of activities between the two committees to insure a uniform approach to judicial instructions to juries. They continually update existing jury instructions to comply with case law, legislation, and useful suggestions from sections and the legal community, as well as raft instructions in plain language maintaining the goals of clarity and accuracy.

This important charge kept both the civil and the criminal committees busy in 2023.

Uniform Civil Jury Instructions

In 2023, the Uniform Civil Jury Instructions Committee completed their review of the User’s Guide, amended ten instructions, withdrew three instructions, and added three new instructions. The committee also updated the comment to 44.03 (Professional Perfection Not Required), which was withdrawn in 2022 after the Court of Appeals found it to be an incorrect statement of the law. The Supreme Court has since reversed the Court of Appeals and the committee plans to review this instruction again in 2024.

The Committee updated the User’s Guide to reflect amendments to statutes and rules where necessary, edited the guide to include more gender-neutral terms, added case law, and updated and expanded the section on exceptions.

The committee withdrew UCJI 44.06 and 44.07 dealing with agency in the hospital context. UCJI 30.04A and 30.04B, which address actual and apparent agency in general, were both updated in the comments to add recent case law affecting agency in the hospital context. In the area of domestic-animal liability, the committee updated an instruction, combined two instructions into one, and added four new instructions providing definitions of domestic animal, wild animal, and keeper. The committee also added instructions to address liability for dogs adjudged to be potentially dangerous. Finally, the committee amended several instructions to update statutory citations that the legislature had recently renumbered.

Uniform Criminal Jury Instructions

Considering some appellate court opinions regarding mental states and how they apply to particular elements of crimes, the 2023 Uniform Criminal Jury Instructions Committee had plenty of work to do. The committee’s big accomplishment was revising all the assault instructions. Many of those instructions had to be split in two, creating separate instructions for the “knowingly” version of the crime and the other mental-state versions. Among other things, the committee also updated some of the homicide instructions, the bias-crime instructions, and some criminal mischief instructions, and it wrote a new instruction for the aggravating factor of committing a crime with a firearm.

Overall, the 2023 Supplement contains 52 revised instruction and 20 new instructions.

Available for Preorder

Both of the supplements, and the full books including the supplement instructions, are now available for preorder on the online bookstore in both print and digital formats. Both formats include the MS Word documents of the instructions. All eBook preorders will ship in February and print book preorders will ship by early March.

Shall I Compare Thee to a Summer’s Day? Probably not.

by Ian Pisarcik, Legal Publications Attorney Editor

The writer David Foster Wallace was so fond of words that he used to lie awake for hours reading the dictionary and circling the ones he liked best: Maugre, Tarantism, Ruck, Sciolism, Primipara. He is a man who once wrote “I do things like get in a taxi and say, ‘The library, and step on it.’” His desire to use uncommon words was matched by his desire to know the meaning of those uncommon words. Many lawyers, it seems at times, share only the first desire. Nowhere is this more evident than in the enduring use of the word shall.

Lawyers rely heavily on the word shall, and while the most common interpretation of the word is that it denotes a mandatory action (i.e., must), lawyers do not consistently use it this way. As lawyer and lexicographer Bryan Garner points out, “that’s why courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa.” Let’s look at some examples, shall we?

  1. “No person shall operate a motorboat at a speed greater than is reasonable.” If shall means must, then this sentence is telling us that no person must operate a motorboat at a speed greater than reasonable. In other words, you’re not required to operate a motorboat at a speed greater than is reasonable, but if you want to, knock yourself out. This is clearly not the intended meaning. What the author is trying to say is: “No person may operate a motorboat at a speed greater than is reasonable.” In other words, you are not allowed to do this.
  2. “The sender shall have fully complied with the requirement to send notice, when the sender obtains electronic confirmation that the transmission has been received.” Is shall denoting a mandatory action here? Of course not. The sentence is simply defining when the sender has fully complied: “The sender has complied . . . when the sender obtains electronic confirmation. . .”
  3. “The agreement shall be terminated.” A duty must be imposed on a capable actor. An agreement is not a capable actor. What this sentence is intended to mean is that the agreement is terminated (presumably by someone or some action, but that’s a post for another day).

The word shall is rarely used consistently throughout a legal document. And the result is that, as Garner puts it, “the word breeds litigation.” According to Garner, the multivolume Words and Phrases, published by Thomson Reuters, contains 107 pages of small-type cases interpreting the word shall. Garner hoped to cut down on some of this litigation when he revised the civil, appellate, and criminal federal rules, and dropped the word shall completely. The editors at the Oregon State Bar have chosen to do the same. We shall banish the word from our vocabulary, and don’t get us started on witnesseth . . .