Opinion
Case No. 2:06-cv-1049.
May 11, 2009
For Plaintiff: Mark Lawrence Wakefield, Cleveland, Ohio.
For Defendant: Audrey Elizabeth Varwig, Patrick McCaffrey, Jr., Gollian McCaffrey, LLC, Columbus, Ohio.
ORDER
This case is set for trial to begin June 15, 2009. Any motions in limine must be filed no later than May 26, 2009, and memoranda in opposition to the motions in limine must be filed on or before June 2, 2009.
Attached are my Instructions to Counsel. Counsel are DIRECTED to confer and submit agreed jury instructions to the Court no later than June 8, 2009. A final pretrial conference will be held on June 10, 2009 at 3:00 p.m. Attached are my voir dire script, preliminary charge to the jury, and the boilerplate sections from the final charge. Please provide me with a 1-2 paragraph description of the case and the parties' positions to be read to the panel at the beginning of the voir dire so that they know enough about the case to respond intelligently to our questions. I also need agreed charges on the essential elements of the claims and defense which will be read to the jurors as part of the preliminary charge given before opening statements. Include any charge you believe would help the jurors understand the legal significance of the testimony during trial.
INSTRUCTIONS TO COUNSEL Civil Jury Trial Magistrate Judge Mark R. Abel
1. Counsel Tables
The parties will occupy the counsel tables chosen or agreed upon before the opening of the first session of the trial.
2. First Day of Trial
3. Court Sessions
If the trial can be completed within four days, the first day of trial will normally be on Tuesday. I will meet with counsel at 8:30 a.m. the first day of trial to address any issues that should be resolved before the jury is selected and they are given a preliminary charge on the law. Enter your appearance with the court reporter before the start of the opening session of the trial.
Morning session begins 9:00 a.m.
Recess approximately 10:30 a.m. for 15 minutes
Noon recess approximately 12:00-12:15 p.m.
Afternoon session begins 1:15-1:30 p.m.
Recess approximately 3:15 p.m. for 15 minutes
Adjourn approximately 4:30 p.m.
Make wise use of the jurors' time. Be prepared to present evidence for the full day. Promptly advise opposing counsel and the Court if a witness is delayed or it appears that you may run out of witnesses during a session of Court. Motions in limine and objections requiring argument will be heard before 8:30 a.m., during noon hour, or after 4:30 p.m.
You and your client must be at counsel's table before the jury is brought in. The parties and counsel will stand when the jury is conducted into and out of the courtroom.
If more than one lawyer appears for a party, advise the Court who will conduct the voir dire; make the opening statement; examine witnesses and make (or divide) closing argument. If the lawyer who examined the last witness is not examining the next witness, inform the Court (and the jury) when it is your client's turn to examine the witness.
Always stand to address the Court, the jury, or a witness. Address the Court, the jury, or a witness from the lectern or from any other convenient location in the Courtroom. Do not lean on the jury box rail or stand uncomfortably close to a juror or witness.
The whole panel of prospective jurors, not just the eight persons seated in the jury box, will be examined for cause and accepted or challenged and excused in one continuing examination.
The Court will conduct a basic voir dire. Counsel may then ask follow-up questions and questions related to the case to be tried. The jurors have answered a detailed jury questionnaire which is available to counsel the week before trial. DO NOT NEEDLESSLY ASK QUESTIONS WHICH THE JURORS HAVE ANSWERED IN THE QUESTION-NAIRE. In most cases, 20 to 30 minutes a side is enough time for counsel to complete their voir dire.
Address your questions to the whole panel of prospective jurors. You may question an individual juror if a prospective juror's answer to a question addressed to the whole panel suggests further, individual questioning.
Peremptory challenges with respect to the prospective jurors qualified for cause will be exercised as follows:
(a) Plaintiff exercises his first challenge
(b) Defendant exercises his first challenge
(c) Plaintiff exercises his second challenge
(d) Defendant exercises his second challenge
(e) Plaintiff exercises his third challenge
(f) Defendant exercises his third challenge
If either plaintiff or defendant "passes," i.e., foregoes to exercise a challenge in the order prescribed, that party has thereby "used" the challenge. If both parties successively "pass," indicating thereby that both parties are satisfied with the jury as then constituted, the eight persons seated in the jury box will constitute the jury in this case.
Rule 48, Fed.R.Civ.P. provides:
The court shall seat a jury of not fewer than six and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court pursuant to Rule 47(c). Unless the parties otherwise stipulate, (1) the verdict shall be unanimous and (2) no verdict shall be taken from a jury reduced in size to fewer than six Members.
There are no alternate jurors. All eight jurors sit and deliberate.
When the Court asks you to call your next witness, give the name to the Court Security Officer, who will bring the witness into the courtroom for the oath.
There is a large lectern in front of the bench and a smaller one at the far end of the jury box. Witnesses should normally be examined from a lectern. Do not approach the witness without asking the permission of the Court. When permission is granted for the purpose of working with an exhibit, resume the examination from the lectern when finished with the exhibit.
Counsel will indicate to the Court that he has completed the examination-direct, cross, redirect, recross — of a witness after which the Court will advise opposing counsel to proceed. During the examination of a witness, obtain permission of the Court if you want to confer with co-counsel.
Stand when making an objection. Address the objection directly (and only) to the Court.
When objecting, state only that you are objecting and specify the ground or grounds of objection. Do not use objections for the purpose of making a speech, recapitulating testimony, or attempting to guide the witness.
The jury's time is valuable. Bench conferences should be kept to a minimum. I am available at 8:30 a.m., over the noon hour, and after 4:30 p.m. to consider matters appropriately raised outside the hearing of the jury.
Exhibits must be submitted to the other side for examination before being used. See, Rule 26(a)(3), Fed.R.Civ.P. Whenever practicable, exhibits should be shown to opposing counsel before court convenes.
All exhibits are held in the custody of and are marked by the clerk. Plaintiff's exhibits will be marked "Plaintiff. Ex. — 1," etc. Defendant's exhibits will be marked "Def. Ex. — A," etc.
Each counsel shall keep a list of all exhibits.
In formulating any question to a witness dealing with an exhibit, specify the exhibit number or designation so that the record will be clear.
No later than the morning of trial, provide the Court with an exhibit book. Always have copies of exhibits available for opposing counsel and the witness.
Each counsel is responsible for any exhibits which he secures from the clerk. At each noon-time or end-of-the-day adjournment, return all exhibits to the clerk.
With permission, you may approach the witness to hand him or her an exhibit. Alternatively, you should ask the courtroom deputy to hand the exhibit to the witness.
The Court attempts to cooperate with doctors and other professional witnesses and will, except in extraordinary circumstances, accommodate them by permitting them to be put on out of order. Anticipate any such possibility and discuss it with opposing counsel. If there is objection, confer with the Court in advance.
Treat the Court, the jury, the parties, opposing counsel, and all witnesses with respect.
JURY CHARGE
TABLE OF CONTENTS Page
Province of the Court .................................................. 1 Court's Questions ...................................................... 2 Province of the Jury ................................................... 3 All Persons Equal Before the Law ....................................... 4 Burden of Proof ........................................................ 5 Preponderance of Evidence .............................................. 6 Evidence ............................................................... 7 Direct Evidence — Circumstantial Evidence ........................ 8 Credibility of Witnesses ............................................... 9 Stipulation of Facts .................................................. 10 Exhibits .............................................................. 11 Expert Witnesses ...................................................... 12 Videotape ............................................................. 13 Objections ............................................................ 14 Corporate Liability ................................................... 15 Nature of Action ...................................................... 16 Elements of Plaintiff's Claim ......................................... 17 Compensatory Damages .................................................. 18 Future Damages ........................................................ 19 Proximate Cause ....................................................... 20 Damages Must be Reasonable — Not Speculative .................... 21 Double Damages ........................................................ 22 Present Pecuniary Value ............................................... 23 Income Taxes .......................................................... 24 "Quotient Verdict" Not Permitted ...................................... 25 Election of Foreperson ................................................ 26 Duty in Deliberating .................................................. 27 Verdict to be Unanimous ............................................... 28 Forms of Verdict ...................................................... 29 Notify Court Security Officer When Verdict Reached .................... 32 Instructions and Forms Do Not Recommend Any One Verdict ............... 33 Written Instructions .................................................. 34 Retire to Deliberate .................................................. 36JURY CHARGE PROVINCE OF THE COURT
Ladies and Gentlemen of the Jury:Now that you have heard the evidence and the arguments, the time has come to instruct you as to the law governing the case.
Although you as jurors are the sole judges of the facts, you are duty bound to follow the law as stated in the instructions of the Court and to apply the law as given to the facts as you find them from the evidence before you.
You are not to single out any one instruction alone as stating the law, but must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule of law. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to base a verdict upon any other view of the law than that given in the instructions of the Court.
COURT'S QUESTIONS
During the course of the trial I have asked questions of some witnesses. My only purpose was to make the testimony and evidence clear in my mind. You are not to draw any conclusion that by my questioning witnesses I have intended to convey any point of view about the merits of the parties' positions in this case.PROVINCE OF THE JURY
You have been chosen and sworn as jurors in this case to try the issues of fact presented. You are to perform this duty without bias or prejudice to any party. The law does not permit jurors to be governed by sympathy, prejudice, or public opinion. The parties and the public expect that you will carefully and impartially consider all the evidence, follow the law as stated by the Court, and reach a just verdict, regardless of the consequences.ALL PERSONS EQUAL BEFORE THE LAW
This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. The law is no respecter of persons; all persons stand equal before the law and are to be dealt with as equals in a court of justice.CORPORATE LIABILITY FOR AGENTS' ACTIONS
Corporations such as Lisa Motor Lines, Inc. act through their officers, employees, and agents. Lisa Motor Lines, Inc. is legally responsible for the actions of its employees within the scope of their authority.BURDEN OF PROOF
In a civil action such as this, the burden is on plaintiff to prove every essential element of his case against defendants by a "preponderance" of the evidence.PREPONDERANCE OF EVIDENCE
To establish a fact by a preponderance of the evidence means to prove that something is more likely so than not so. Stated another way, a preponderance of the evidence means such evidence as, when considered and compared with the evidence opposed to it, has more convincing force and produces in your minds a belief that what is sought to be proved is more likely true than not true.The burden of proof by a preponderance does not require proof to an absolute certainty. As we all know, in human affairs absolute certainty is seldom possible. Nor does the burden of proof by a preponderance mean that you will decide an issue of fact on the basis of the number of witnesses who testify concerning that fact. The test is not which side brings the greater number of witnesses or produces the greater quantity of testimony, but which side produces the witnesses and evidence which in your minds is the more accurate and trustworthy.
In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence, regardless of who produced it. If the weight of the evidence is equally balanced, or if you are unable to determine which side of an issue has the preponderance, the party who has the burden of proof has not established such issue by a preponderance of the evidence.
EVIDENCE
The evidence in this case consists of the sworn testimony of the witnesses, all the exhibits which have been received in evidence, and the stipulations of the parties.You are to consider only the evidence in the case. However, you are not limited to the bald statements of the witnesses, but you are permitted to draw, from the facts which you find have been proved, such reasonable inferences as seem justified in the light of your own experience. That is to say, from the facts which have been proved you may draw an inference based upon reason and common sense.
DIRECT EVIDENCE — CIRCUMSTANTIAL EVIDENCE
There are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof of fact, such as testimony given by a witness who has seen or heard the facts to which he or she testifies. If a witness testified that he saw it raining outside, and you believed him, that would be direct evidence that it was raining. Circumstantial evidence is the proof of facts or circumstances from which you may infer or conclude that other facts exist. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining.CREDIBILITY OF WITNESSES
During the performance of your primary duty of determining the facts, you will be faced with the problem of what weight should be given to the testimony of each witness. You are the sole judges of the credibility or believability of the witnesses and the weight their testimony deserves.You should consider carefully all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether a witness is worthy of belief. You will consider each witness' intelligence, his or her motive, state of mind, and demeanor while on the stand. Consider also any relation each witness has to either side of the case; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.
Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit that testimony. In determining the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.
After such consideration, you will give the testimony of each witness such weight and credibility, if any, as you may think it deserves.
STIPULATED FACTS
The plaintiff and the defendant have stipulated — that is, they have agreed-to the following fact:You should, therefore, treat those facts as having been proved.
EXHIBITS
A number of exhibits and testimony related to them have been introduced. You will determine what weight, if any, the exhibits should receive in the light of the evidence.EXPERT WITNESSES
During this trial you heard the testimony of (an) expert witness(es). Such evidence is admissible where the subject matter involved requires special study, training, or skill not within the realm of the ordinary experiences of mankind, and the witness is qualified to give an expert opinion.However, the fact that an expert opinion is given does not mean that it is binding on the jury or that the jury is obligated to accept the expert's opinion as to what the facts are. It is the province of the jury to determine the credibility and weight that should be given to the expert opinion in the light of all the evidence. In deciding the weight to be given to the expert's testimony, consider his skill, experience, knowledge, veracity, familiarity with the facts of the case, and the usual rules for testing credibility and deciding the weight to give to the testimony. Although the jury may not arbitrarily disregard the testimony of an expert witness, if the jury finds that his opinion is not based on the facts, or is contrary to the evidence, the jury should disregard it.
VIDEOTAPE
Some testimony was presented by a deposition on videotape. This evidence is to be considered according to the same tests that are applied to other witnesses.OBJECTIONS
It is the duty of an attorney on each side of a case to object when the other side offers testimony or other evidence which the attorney believes is not properly admissible. You should not show prejudice against an attorney or his or her client because the attorney has made objections.Upon allowing testimony or other evidence to be introduced over the objection of an attorney, the Court does not, unless expressly stated, indicate an opinion as to the weight or effect of such evidence.
When the Court has sustained an objection to a question addressed to a witness, the jury must disregard the question entirely, and may draw no inference from the wording of it, or speculate as to what the witness would have said if he or she had been permitted to answer the question.
NATURE OF ACTION
On December 22, 2004, plaintiff Michael Lockhart, who was employed by J.B. Hunt Transportation as a driver, was in his parked vehicle at a Pilot Truck Stop, near exit 79 off Interstate 70 in London, Ohio. According to the plaintiff, defendant William Griffin, acting in the course and scope of his employment with defendant Lisa Motor Lines, Inc., negligently, carelessly, recklessly, and in violation of both State and federal Department of Transportation regulations and directives, operated his vehicle into Lockhart's vehicle. As a direct and proximate result of the defendants' negligent, careless and reckless conduct, Lockhart was caused to sustain personal injuries including, but not limited to, injuries to his knee, back, neck and mouth. Lockhart has suffered severe physical, mental and psychological pain and anguish and has incurred hospital and medical expenses. He has sustained a loss of earnings and a permanent diminution of his earning capacity.ELEMENTS OF PLAINTIFF'S CLAIMS
Plaintiff must prove to you by the greater weight of the evidence that defendants were negligent.Negligence is a failure to use ordinary care. Every person is required to use ordinary care to avoid injuring another person. Ordinary care is the care that a reasonably careful person would use under the same or similar circumstances.
See 1 OJI 401.01.
COMPENSATORY DAMAGES FUTURE DAMAGES
Additionally, you will note that the Plaintiff seeks future losses on some of their damages claims. Specifically, Plaintiff claims damages forPROXIMATE CAUSE
You are not to award damages for any injury which Plaintiff may have suffered unless it has been established by a preponderance of the evidence in the case that such injury was proximately caused by Defendants' conduct.Proximate cause is an act or failure to act which in the natural and continuous sequence directly produces the injury, and without which it would not have occurred. Cause occurs when the injury is the natural and foreseeable result of the act or failure to act.
DAMAGES MUST BE REASONABLE — NOT SPECULATIVE
Damages must be reasonable. You may award only an amount that will reasonably compensate Plaintiff for such an injury and damages as you find, from a preponderance of the evidence in the case, that they have sustained as a result of Defendant's wrongful conduct. You are not permitted to award speculative damages. Instead, Plaintiff has the burden of proving, by a preponderance of the evidence, not only that he suffered damages, but what those damages are.Remember, throughout your deliberation, you must not engage in any speculation, guess, or conjecture and you must not award any damages through sympathy.
DOUBLE DAMAGES
Any amounts that you have determined will be awarded to Plaintiff for any element of damages shall not be considered again or added to any other element of damages. You should be cautious in your consideration of the damages not to overlap or duplicate the amounts of your award which would result in double damages. For example, any amount of damages awarded to the Plaintiff for pain and suffering must not be awarded again as an element of damages for the plaintiff's inability to perform usual activities. Likewise, any amount of damages awarded to the plaintiff for the inability to perform usual activities must not be considered again as an element of damages awarded for the plaintiff's pain and suffering, or any other element of damages.PRESENT PECUNIARY VALUE
The measure of any future damage is the present loss in dollars which Plaintiff with reasonable certainty will sustain in the future, and which is capable of measurement by the present value of money. You may not speculate upon any change is the value of the dollar.INCOME TAXES
With reference to the amount of an award, if any, you are to follow the instructions already given. You may not consider federal, state, or city income taxes. In no event may you add to, or subtract from, an award because of such taxes."QUOTIENT VERDICT" NOT PERMITTED
In making the assessment of damages, you shall make your assessment strictly in accordance with these instructions.You may not agree in advance to accept an average figure as the amount of your verdict. If a figure is reached by obtaining an average, such amount is not a proper verdict unless each juror thereafter individually exercises his judgment and decides whether or not he will accept such amount.
ELECTION OF FOREPERSON
Upon retiring to the jury room, you will select one of your number to act as foreperson who will preside over the deliberations and be your spokesperson in court.The foreperson will see that your discussions are orderly and that each juror has the opportunity to discuss the case and to cast his or her vote; otherwise, the authority of the foreperson is the same as any other juror.
DUTY IN DELIBERATING
It is your duty, as jurors, to confer with one another, and to deliberate with a view to reaching an agreement, if you can do so without doing violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations do not hesitate to re-examine your own views and change your opinion if you are convinced it is erroneous.However, do not surrender your honest conclusion as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
Remember always that you are not partisans. You are judges — impartial triers of the facts. Your sole interest is to ascertain the truth from the evidence in the case. Don't take a firm position at the outset and then be too proud to change your position.
VERDICT TO BE UNANIMOUS
The verdict in this case must represent the considered judgment of each juror. In addition, your verdict must be unanimous. In order to return a verdict, it is necessary that each juror agree to it.FORMS OF VERDICT
The Court will provide you with four verdict forms which you will have with you in the jury room. If you reach a unanimous verdict on the amount of damages proximately caused Plaintiff by Defendants' wrongful conduct, then you must fill out the verdict forms, stating the total amount of damages for Plaintiff as to each Defendant. The foreperson and each juror must sign the verdict form.VERDICT FOR PLAINTIFF AGAINST DEFENDANTS LISA MOTOR LINES, INC. AND WILLIAM GRIFFIN
As to defendants Lisa Motor Lines, Inc. and William Griffin, we, the jury in the above-entitled action, unanimously find that Plaintiff has proved by a preponderance of the evidence that defendants were negligent: Yes______ No ______We assess Plaintiff's damages in the sum of $ __________.
_______________ _______________ Date Foreperson _______________ _______________ _______________ _______________ _______________ _______________ _______________ _______________ _______________ _______________VERDICT FOR DEFENDANTS LISA MOTOR LINES, INC. AND WILLIAM GRIFFIN
We, the jury in the above-entitled action, unanimously find that plaintiff failed to prove by a preponderance of the evidence that defendants Lisa Motor Lines, Inc. and William Griffin were negligent. _______________ _______________ Date Foreperson _______________ _______________ _______________ _______________ _______________ _______________ _______________ _______________ _______________ _______________NOTIFY COURT SECURITY OFFICER WHEN VERDICT REACHED
When you arrive at your verdict, you will notify the Court Security Officer, who will inform the Court and return you to the courtroom where the verdict will be announced.INSTRUCTIONS AND FORMS DO NOT RECOMMEND ANY ONE VERDICT
Nothing said in these instructions and nothing in the verdict forms prepared for your convenience is to suggest or convey in any way the verdicts I think you should return. What verdicts shall be returned is your exclusive duty and responsibility as jurors.WRITTEN INSTRUCTIONS
1. The written form of the instructions on the law I have just given you will be available to you in the jury room.2. These instructions, which are contained in a three-ring binder, are placed in charge of the foreperson you elect.
3. You are invited to use these instructions in any way that will assist you in your deliberations and in arriving at a verdict.
4. You may pass these instructions from juror to juror for individual reading and consideration, but you may not remove any of the individual sheets from the binder.
5. These written instructions, which are in exactly the same language as I have given them to you verbally, represent the law that is applicable to the facts, as you find the facts to be.
6. There is a list of elements of the instructions on the first pages of these instructions. You may readily locate any particular instruction by referring to this list.
7. The foreperson will be responsible for returning to the Court any exhibits, verdict forms, or interrogatories.
8. Until you verdict is announced in open court, no juror is permitted to disclose to anyone the status of your deliberations or the nature of your verdict. This order must be strictly obeyed.
9. After your verdict is returned and announced in court, you may discuss the case with anyone. You are not required to do so; it is a matter of your own free choice.
Do counsel have any objections to the charge?
RETIRE TO DELIBERATE
You will now retire to the jury room to deliberate upon your verdict. The bailiff will confer with you regarding any recess or adjournment.VOIR DIRE INTRODUCTION
1. Mr. Harris, please call the case for this morning.
2. Have the jury panel sworn.
3. I'm Mark Abel, the trial judge in the case of Michael R. Lockhart v Lisa Motor Lines, et al.. Counsel anticipate that the trial will last ______ days.
4. Introduce counsel, parties, etc.
Representing Plaintiff: Mark Lawrence Wakfefield, an attorney Cleveland, Ohio Representing Defendant: Audrey Elizabeth Varwig and Patrick McCaffrey, Jr., attorneys with the law firm of Golian McCaffrey, LLC in Columbus, OhioSTATEMENT OF THE CASE
Plaintiff Michael T. Lockhart alleges that defendant Jeremy Ervin negligently, carelessly and recklessly operated his vehicle into plaintiff Michael Lockhart's vehicle, causing Lockhart personal injuries. The accident took place at a Pilot Truck Stop at Exit 79, I-70. Both drivers were operating trucks.VOIR DIRE EXAMINATION
Now, we are going to begin with a voir dire examination of you — the prospective jurors in Lockhart v. Lisa Motor Lines, et al.. The purpose of the voir dire examination is to allow the court to determine your ability to be fair and impartial in this particular case. These questions are not designed to pry into your personal affairs, but to discover if you have any preconceived opinion which you cannot lay aside, or if you have any experience in your personal or family life that might cause you to favor either party. These questions are necessary to assure each party a fair jury.QUESTIONS BY THE COURT:
1. Does any prospective juror have any prior knowledge or information concerning the alleged accident?
2. Have you ever visited the Pilot Truck Stop at Exit 79, I-70?
(a) When?
(b) For what reason?
3. Does any prospective juror have any personal interest of any kind whatsoever in this case?
4. Is any prospective juror related by family or marriage, or does any prospective juror have any personal acquaintance or knowledge, either directly or indirectly, with:
• Mark Lawrence Wakefield
• Audrey Elizabeth Varwig, Patrick McCaffrey, Jr., or any other attorney with
the law firm of Golian McCaffrey, LLC?
• Plaintiff Michael T. Lockhart
• Defendant Lisa Motor Lines or its employees or agents
• Defendant William Griffin
• Any other witnesses in this case:
• ______
• ______
• ______
• ______
• ______
5. Have you or a close member of your family ever experienced/been involved in an auto accident?
6. Have you or a close member of your family ever been injured in an auto accidence?
7. Have you or a close member of your family ever filed an insurance claim as a result of an auto accident?
8. Are you or any close members of your family employed as a truck driver?
9. Are your or any close members of your family engaged in the business of trucking?
10. Have you or a close member of your family ever been a plaintiff or a defendant in a civil case?
(a) What type of claim?
(b) Did it go to court?
(c) Did it go to trial?
(d) Was it decided in court or settled?
(e) Do you feel you were treated fairly?
(f) Would that fact in any way influence you in reaching a decision in this case?
11. Have you or a close member of your family ever been a witness in a civil case?
12. Have you served as jurors before?
(a) When?
(b) In what type of case?
(c) What was the outcome of the case?
13. Do you or any close members of your family have any formal legal training of any kind?
14. Do any of you disagree with the concept of ________________________________ (Describe legal right involved in ______________________, and think that _____________________________________ ? lawsuit) (plaintiff/defendant should not exercise that legal right) 15. (Other questions plaintiff or defendant want the judge to ask jurors.)16. Does any prospective juror have any feelings, thoughts, inclination, premonition, prejudice or bias which might influence or interfere with your full and impartial consideration of the evidence and which might influence you in favor of or against either the plaintiff or the defendant?
17. Is there any reason of any nature whatsoever in the mind of any prospective juror why you cannot hear and consider the evidence and render a fair and impartial verdict?
18. Do you have a problem with lawsuits in general?
(a) Do you think that there are too many lawsuits?
1. Do you have any fixed ideas about people who file lawsuits or people who defend lawsuits which would affect your judgment as a fair and impartial juror?
19. Under our American system of law, in a trial of a civil action, the jury decides all issues of fact. The jurors are the sole "triers of fact." You have the sole and final duty and responsibility for making any decisions on the facts. It is the duty and responsibility of the court to instruct you on the law. The instructions that the court gives the jury is the body of law which must be applied to the facts as you find the facts to be. As jurors you have to take the law, that is, accept the instructions, as the Court gives them to you. You cannot take the law to be what you think it is, or what, in your opinion, it ought to be. You must take the law as the Court gives it to you and apply the law to the facts as you find the facts to be. Is there anyone who feels they will not be able to do this?
20. Do you have a hearing or sight problem that would interfere with your ability to hear the testimony or see the witnesses and read the exhibits?
21. This will be a ______ day trial, starting today. Do any of you have any reason whatsoever which would prevent you from serving as a juror these ______ days?
QUESTIONING BY COUNSEL:
At this time, counsel for the parties are permitted to continue asking questions of the jury panel.
Mr. Wakefield, (Plaintiff's Counsel), do you have any voir dire questions for the jury panel?
Ms. Varwig (Defendant's Counsel), do you have any voir dire questions for the jury panel?
[Tell voire dire panel that time has come for counsel to make their challenges for cause and their peremptory challenges. Invite counsel to bailiff's desk. Turn on white noise. Tell jurors they are free to relax/stretch.]
Mr. Wakefield, do you have any challenges for cause?
Ms. Varwig, do you have any challenges for cause?
Mr.Wakefield, please exercise your first/second/last peremptory challenge.
Lockhart v. Lisa Motor Lines, et al. PRELIMINARY CHARGE OATH
Mr. Harris, please administer the oath to the jurors.Members of the jury panel who have not been selected to sit and hear the evidence:
Thank you for appearing here this morning. I'm sorry you were not selected and hope that you have another opportunity to serve on a jury soon. Your participation this morning was important to the parties, to the Court, and to our system of justice which guarantees the litigants the right to seek the judgment of a jury of their peers. Thank you, and you are free to leave.
Members of the Jury:
Now that you have been selected and sworn, I will give you some preliminary instructions to guide you in your participation in the trial.
DUTY OF THE JURY
It will be your duty to find from the evidence what the facts are. You, and you alone, are the judges of the facts. You will then have to apply to those facts the law as the Court will explain it to you. We must all follow that law whether we agree with it or not.Nothing the Court may say or do during the course of the trial is intended to indicate nor should be taken by you as indicating what your verdict should be.
EVIDENCE
The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received into the record as exhibits. Certain things are not evidence and must not be considered by you. I will list them for you now:1. Statements, arguments and questions by the lawyers are not evidence.
2. Objections to questions are not evidence.
3. Testimony that the Court has excluded or told you to disregard is not evidence and must not be considered.
4. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are to decide the case solely on the evidence presented here in the courtroom.
There are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof of fact, such as testimony given by a witness who has seen or heard the facts to which he or she testifies. If a witness testified that he saw it raining outside, and you believed him, that would be direct evidence that it was raining. Circumstantial evidence is the proof of facts or circumstances from which you may infer or conclude that other facts exist. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. Keep in mind that you may consider both kinds of evidence: Direct and Circumstantial.
It will be up to you to decide which witnesses to believe, which witnesses not to believe, and how much of any witness' testimony to accept or reject. I will give you some guidelines for determining the credibility of witnesses at the end of the case.
OBJECTIONS
It is the duty of an attorney on each side of a case to object when the other side offers testimony or other evidence which the attorney believes is not properly admissible. You should not show prejudice against an attorney or his or her client because the attorney has made objections.Upon allowing testimony or other evidence to be introduced over the objection of an attorney, the Court does not, unless expressly stated, indicate an opinion as to the weight or effect of such evidence.
When the Court has sustained an objection to a question addressed to a witness, the jury must disregard the question entirely, and may draw no inference from the wording of it, or speculate as to what the witness would have said if he or she had been permitted to answer the question.
BURDEN OF PROOF
This is a civil case. Plaintiff has the burden of proving his case by what is called the preponderance of the evidence. That means that Plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what Plaintiff claims is more likely true than not.Those of you who have sat on criminal cases will have heard of proof beyond a reasonable doubt. That requirement does not apply to a civil case, and you should therefore put it out of your mind.
NATURE OF ACTION
On December 22, 2004, plaintiff Michael Lockhart, who was employed by J.B. Hunt Transportation as a driver, was in his parked vehicle at a Pilot Truck Stop, near exit 79 off Interstate 70 in London, Ohio. According to the plaintiff, defendant William Griffin, acting in the course and scope of his employment with defendant Lisa Motor Lines, Inc., negligently, carelessly, recklessly, and in violation of both State and federal Department of Transportation regulations and directives, operated his vehicle into Lockhart's vehicle. As a direct and proximate result of the defendants' negligent, careless and reckless conduct, Lockhart was caused to sustain personal injuries including, but not limited to, injuries to his knee, back, neck and mouth. Lockhart has suffered severe physical, mental and psychological pain and anguish and has incurred hospital and medical expenses. He has sustained a loss of earnings and a permanent diminution of his earning capacity.BRIEF CHARGE ON ESSENTIAL ELEMENTS OF CLAIMS DEFENSES
Negligence is a failure to use ordinary care. Every person is required to use ordinary care to avoid injuring another person. Ordinary care is the care that a reasonably careful person would use under the same or similar circumstances.
See 1 OJI 401.01.
NOTE-TAKING
You may take notes. No juror is required to take notes; the taking of notes is entirely a matter of personal choice. Some believe note-taking can interfere with their ability to pay close attention to what is happening in the courtroom and prevents them from hearing all the evidence. Do not let taking notes divert your attention from the trial.The fact that the notes taken by a juror support his or her recollection in no way makes his or her memory more reliable than that of jurors who do not take notes.
All notes are confidential and for consideration by the jury only. Leave your notes on your chair during any recess and until deliberations begin. Ms. Tornus will collect and safeguard your notes. When you retire to deliberate your verdict, you can take your notes with you to the jury room. All notes will be given to Ms. Tornus after you return your verdict, and she will immediately cause them to be destroyed.
CAUTIONARY INSTRUCTIONS
At this point you have not heard any evidence, but I want to give you a few brief cautionary instructions. You will decide this case solely on the evidence presented here in the courtroom. You are not to discuss the case with anyone or permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you are simply not to talk about this case.I don't expect this case will be reported in the media, but if it is, do not read or listen to anything touching on this case in any way. If anyone should try to talk to you about it, bring it to the Court's attention immediately.
Do not try to do any research or make any investigation about the case on your own.
Finally, do not form any opinion until all the evidence is in. Keep an open mind until you start your deliberations at the end of the case. You are not partisans. You sit as neutral judges of the facts. Don't choose sides. Listen to all the evidence and wait until the evidence is closed to begin your deliberations with your fellow jurors as independent judges of the facts.
If you need to speak with me about anything, simply give a signed note to the marshal to give to me.
I will not repeat these admonitions each time we recess or adjourn court, but I will remind you of them.
Is there anything further on behalf of counsel?
START OF THE TRIAL
The trial will now begin. First, counsel will make opening statements. An opening statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered to help you follow the evidence.After the opening statements, Plaintiff will present his witnesses.