Kelly on Malpractice

PLAINTIFFS’ PROPOSED JURY CHARGE
The Plaintiff, by and through counsel, submits the following proposed jury instructions:
1. BEFORE VOIR DIRE – 1.01
You have been summoned as prospective jurors in a civil case involving a claim of medical negligence. The parties involved are Michael O. Derrick, who is represented by Dulin Kelly, Clint Kelly, and Art Wells. Tom Wiseman and Brian Cummings represent Dr. George Thomas and his employer, Madison Clinic Corporation.
You will be asked questions by the Court and the by the attorneys. Although some of the questions may seem to be personal, they are intended to find out if you have any knowledge of this particular case, if you have any opinion that you cannot put aside or if you had any experience in life that might cause you to identify yourself with one party or another. Jurors must be free as humanly possible from bias, prejudice, or sympathy and must not be influenced by preconceived ideas about the facts or the law. The parties are entitled jurors who approach this case with open minds until the verdict is reached. Each party has the right to request that a certain number of prospective jurors be excused. If you are excused, then you should not consider it a reflection on you in any way.
2. AFTER VOIR DIRE AND BEFORE TRIAL – 1.02
Before the trial begins, I am going to give you some instructions to help you understand how the case will proceed, what your duties will be, and how you should conduct yourselves during the trial. When I have completed these instructions, the attorneys will make their opening statements. These statements will be brief outlines or a roadmap of what the attorneys expect the evidence to be.
After the opening statements, you will hear the evidence. The evidence generally consists of the numbered exhibits and the testimony of witnesses. The plaintiff will present evidence first. The defendants then will be given the opportunity to present evidence. Normally, the plaintiff will present all of the plaintiff’s evidence before the other parties present any evidence. Exceptions are sometimes made, however, usually to accommodate a witness.
The witnesses will testify in response to questions from the attorneys. Witnesses are first asked questions by the party who calls the witness to testify and then others are permitted to cross-examine the witnesses. Although evidence is presented by asking questions, the questions themselves are not evidence. An insinuation contained in a question is not evidence. You should consider a question only as it gives meaning to a witness’s answer.
Evidence may be presented by deposition. A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. In Tennessee, a doctor of medicine often gives testimony by deposition. You are to consider deposition testimony as if the witness appeared in court.
During the trial, objections may be made to evidence or trial procedures. I may sustain objections to questions asked without permitting a witness to answer, or I may instruct you to disregard an answer that has been given. In deciding this case, you may not draw any inference from an unanswered question, and you may not consider testimony that you are instructed to disregard.
Any arguments about objections or motions are usually required to be made by the attorneys out of the hearing of the jury. Information may be excluded because it is not legally admissible. Excluded information cannot be considered in reaching your decision. A ruling that is made on an objection or motion will be based solely upon the law. You must not infer from a ruling that I hold any view or opinion for or against any party in this lawsuit.
When all of the evidence has been presented to you, the attorneys will make their closing arguments. The attorneys will point out to you what they contend the evidence has shown, what inferences you should draw from the evidence, and what conclusions you should reach as your verdict. The plaintiff will make the first argument and will be followed by the defendants. The plaintiff may then respond to the defendants’ arguments.
Unless you are otherwise instructed, statements made by the attorneys are not evidence. Those statements are made only to help you understand the evidence and apply the law to the evidence in the case. You should ignore any statement that is not supported by the evidence.
After the arguments are made, I will instruct you on the rules of law that apply to the case. It is your function as jurors to determine what the facts are and to apply the rules of law that I give you to the facts that you have found. You will determine the facts from all the evidence. You are the sole and exclusive judges of the facts. On the other hand, you are required to accept the rules of law that I give you whether you agree with them or not.
As the sole judges of the facts, you must determine which of the witnesses’ testimony you accept, what weight you attach to it, and what inferences you will draw from it. The law does not, however, require you to accept all of the evidence. In deciding what evidence you will accept, you must make your evaluation of the testimony given by each of the witnesses and determine the weight you will give to that testimony. You must decide which witnesses you believe and how important you think their testimony is. You are not required to accept or reject everything a witness says. You are free to believe all, none, or part of any person’s testimony.
In deciding which testimony you believe, you should rely on your own common sense and everyday experience. There is no fixed set of rules to use in deciding whether you believe a witness, but it may help you think about the following questions:
1. Was the witness able to see, hear, or be aware of the things about which the witness testified?
2. How well was the witness able to recall and describe those things?
3. How long was the witness watching or listening?
4. Was the witness distracted in any way?
5. Did the witness have a good memory?
6. How did the witness look and act while testifying?
7. Was the witness making an honest effort to tell the truth, or did the witness evade questions?
8. Did the witness have any interest in the outcome of the case?
9. Did the witness have any motive, bias, or prejudice that would influence the witness’s testimony?
10. How reasonable was the witness’ testimony when you consider all of the evidence in the case?
11. Was the testimony contradicted by what that witness has said or done at another time, by the testimony of other witnesses, or by other evidence?
12. Has there been evidence regarding the witness’ intelligence, respectability, or reputation for truthfulness?
13. Has the witness’ testimony been influenced by any promises, threats, or suggestions?
14. Did the witness admit that any part of the witness’ testimony was not true?
There are several rules concerning your conduct during trial and during recesses that you should keep in mind. First, do not conduct your own private investigation into the case, although you may be tempted to do so. For example, do not visit the scene of an incident, read any textbooks or articles concerning any issue in the case, or consult any other source of information. Do not perform any research on the internet about the case, the parties, or the lawyers. If you were to do that, you would be getting information that is not evidence. You must decide this case only on the evidence and law presented to you during the trial. Any juror who receives any information about this case other than that presented at trial must notify the court immediately.
Second, do not discuss the case either among yourselves or with anyone else during the trial. You must keep an open mind until you have heard all the evidence, the attorneys’ closing arguments and my final instructions concerning the law. Any discussions before the conclusion of the case would be premature and improper.
Third, do not permit any other person to discuss the case in your presence. If anyone does attempt to do so, report this fact to the court immediately without discussing the incident with any of the other jurors.
Fourth, do not speak to any of the attorneys, parties, or witnesses in this case, even for the limited purpose of saying good morning or “hello” in the hallway. They are also instructed not to talk to you, even to say “hello.” So don’t think they are being rude by avoiding you or refusing to speak to you—they are just following my order. In no other way can all the parties feel assured of your absolute impartiality.
3. USE OF JUROR NOTES – 1.03
You are permitted to take notes during the trial. You may take notes only of verbal testimony from witnesses, including witnesses presented by deposition or videotape. You may not take notes during the opening statements or closing arguments or take notes of objections made to the evidence. You may not take notes during breaks or recesses. Notes may be made only in open court while witnesses are testifying.
Your notes should not contain personal reactions or comments, but rather should be limited to a brief, factual summary of testimony you think is important. Please do not let your note-taking distract you and cause you to miss what the witness said or how the witness said it. Remember that some testimony may not appear to be important to you at the time. That same testimony, however, may become important later in the trial.
Your notes are not evidence. You should not view your notes as authoritative records or consider them as a transcript of the testimony. Your notes may be incomplete or contain errors and are not an exact account of what was said by a witness.
4. CORPORATION NOT TO BE PREJUDICED
The fact that Madison Clinic Corp. is a corporation must not prejudice you in your deliberations or in your verdict. You may not discriminate between corporations and natural individuals. Both are persons in the eyes of the law, and both are entitled to the same fair and impartial consideration and to justice by the same legal standards.
EMPLOYER / EMPLOYEE - DIRECTED IMPUTATION
It has been established that Dr. Thomas was the employee of Madison Clinic Corp. Therefore, Dr. Thomas and Madison Clinic Corp. should be considered as one if you assign fault.
5. EVIDENCE – 2.01
You are to decide this case only from the evidence which was presented at this trial. The evidence consists of:
1. The sworn testimony of the witnesses who have testified, both in person and by deposition;
2. The exhibits that were received and marked as evidence;
3. Any facts to which all the lawyers have agreed or stipulated;
4. Any other matters that I have instructed you to consider as evidence.
6. DIRECT AND CIRCUMSTANTIAL EVIDENCE – 2.02
There are two kinds of evidence; direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of a witness about what the witness has personally observed.
Circumstantial evidence is indirect evidence that gives you clues about what happened. Circumstantial evidence is proof of a fact or a group of facts that causes you to conclude that another fact exists. It is for you to decide whether a fact has been proved by circumstantial evidence. If you base your decision upon circumstantial evidence, then you must be convinced that the conclusion you reach is more probable than any other explanation.
For example, if a witness testified that he saw it raining outside, then that would be direct evidence it was raining. On the other hand, if a witness testified that he saw someone enter a room wearing a raincoat covered with drops of water and carrying a wet umbrella, then it would be circumstantial evidence that it was raining. It is up to you to decide whether a fact has been proven by circumstantial evidence.
You are to consider both direct and circumstantial evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. In making your decision, you must consider all the evidence in light of reason, experience and common sense.
7. WEIGHING CONFLICTING TESTIMONY – 2.03
Although you must consider all of the evidence, you are not required to accept all of the evidence as true or accurate. You should not decide an issue by the simple process of counting the number of witnesses who have testified on each side. You must consider all the evidence in the case. You may decide that the testimony of fewer witnesses on one side is more convincing than the testimony of more witnesses on the other side.
8. LIMITED ADMISSION OF EVIDENCE – PARTIES OR PURPOSE – 2.05
If evidence was admitted but limited to one or more parties, you must not consider it as to any other party. Whenever evidence was admitted for a limited purpose, you must not consider it for any other purpose. Your attention was called to these matters when the evidence was admitted.
9. DEPOSITION TESTIMONY – 2.06
Certain testimony was read into evidence from a deposition of a witness. A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. You are instructed to consider this testimony in the same regard as if the witness personally testified in this court. You are further instructed not to draw any negative inferences that the testimony was offered by deposition.
10. INTERROGATORIES – 2.07
During the course of the trial you have heard reference to the word “interrogatory.” An interrogatory is a written question asked by one party of another party or of any witness who must answer the question under oath in writing. You are to consider interrogatories and the answers thereto the same as if the questions had been asked and answered here in this court.
11. REQUESTS FOR ADMISSIONS – 2.08
The Plaintiff has introduced into evidence certain “requests for admissions.” If these facts were admitted or not answered, you are to consider the facts to be true, since the other party had the opportunity to deny the admission request but did not do so.
12. STIPULATIONS – 2.09
A stipulation is an agreement. The parties have stipulated that certain matters of fact are true. They are bound by this agreement, and in your consideration of the evidence you are to treat these facts as proven.
13. DISCREPANCIES IN TESTIMONY – 2.21
There may be discrepancies or differences within a witness’ testimony or between the testimony of different witnesses. This does not necessarily mean that a witness should be disbelieved. Sometimes, when two people observe an event, they will see or hear it differently. Sometimes, a witness may have an innocent lapse of memory. Witnesses may testify honestly but simply may be wrong about what they thought they saw or remembered. You should consider whether a discrepancy relates to an important fact or whether a discrepancy relates only to an unimportant detail.
14. WITNESS WILLFULLY FALSE – 2.22
You may conclude that a witness deliberately lied about a fact that is important to your decision in the case. If so, then you may reject everything that witness said. On the other hand, if you decide that the witness lied about something but told the truth about others, then you may accept the part you decide is true and you may reject the rest.
15. PHYSICAL LAWS AND FACTS – 2.25
You should consider all of the surrounding circumstances at the time of the event or occurrence when weighing the testimony of a witness. A statement of fact should be disregarded if you find that the statement is inherently impossible or contrary to universally recognized physical laws or well established physical facts.
16. EXPERT TESTIMONY – DETERMINATION OF WEIGHT – 2.30
Usually, witnesses are not permitted to testify as to opinions or conclusions. However, a witness who has scientific, technical, or other specialized knowledge, skill, experience, training, or education may be permitted to give testimony in the form of an opinion. Those witnesses are often referred to as “expert witnesses.”
To give expert testimony, the witness must be particularly skilled, learned, and experienced in the relevant field, and must have a thorough knowledge of the area in which he or she seeks to testify. You should determine the weight that should be given to each expert’s opinion and resolve conflicts in the testimony of different expert witnesses. You should consider:
1. The education, qualifications, and experience of the witnesses; and
2. The credibility of the witnesses; and
3. The facts relied upon by the witnesses to support the opinion; and
4. The reasoning used by witnesses to arrive at the opinion.
You should consider each expert opinion and give it the weight, if any, that you think it deserves. You are not required to accept the opinion of any expert.
17. EXPERT TESTIMONY ON “POSSIBILITIES”
An expert’s testimony that something is possible is not evidence at all. The mere possibility of a causal relationship, without more, is insufficient to qualify as a valid expert opinion and where the evidence in this case leaves to speculation a determinative fact in this lawsuit, the party having the burden of proof on that issue must suffer the loss.
18. VISUAL AIDS
Certain charts, diagrams, photographs, models, and computer-generated animations have been shown to you and are proper to help demonstrate, explain, or summarize the facts, the opinions of experts, or documents that are in evidence. However, such visual aids are not evidence or proof of any facts. If such visual aids do not correctly reflect facts or figures shown by the evidence, then you should disregard them. Visual aids are utilized only as a matter of convenience. If they are not truthful summaries of the facts or figures as shown by the evidence in this case, then you are to disregard them entirely.
19. HYPOTHETICAL QUESTIONS – 2.31
An expert witness was asked to assume that certain facts were true and give an opinion based upon the assumption. This is called a hypothetical question. You must determine if any fact assumed by the expert witness has not been established by the evidence and the effect of that omission, if any, upon the value of the opinion.
20. SYMPATHY AND HOSTILITY
I also instruct you that sympathy or hostility must not enter into your deliberation as jurors no matter what your sympathy or hostility may lead you to think. Sympathy or hostility has no place in the trial of a lawsuit, or in the making up of your minds as to what your verdict shall be. Do not permit any such emotional considerations to enter into your deliberations at all.
21. ISSUES
1. Is Dr. Thomas at fault in his care of Mr. Derrick?
2. What are Mr. Derrick’s damages?
22. PREPONDERENCE OF EVIDENCE – 2.40
When the burden of proof rests upon a party, that party is required to prove its claim by a preponderance of the evidence. A preponderance of the evidence simply means the greater weight of the evidence. It is the amount of evidence that leads you to conclude an allegation is probably true. To prove an allegation by a preponderance of the evidence, a party must convince you that an allegation is more likely true than not true.
This means the Plaintiff, who has the burden of proof against the Defendants, must prove his claim of fault with the greater weight of the evidence. The balance of the scales must be tipped in the Plaintiff’s favor. If the evidence swings the balance to the Defendants’ side, then the Plaintiff’s claim of fault against the Defendants must fail. If the scales are in a state of even balance, then the Plaintiff’s claim of fault against the Defendants must fail.
23. DEFINITION OF NEGLIGENCE – 3.05
Negligence is defined as the failure to exercise ordinary or reasonable care. It is either doing something that a reasonably careful person would not do, or the failure to do something that a reasonably careful person would do, under all of the circumstances of the case. A person may assume that every other person will use reasonable care, unless a reasonably careful person has cause for thinking otherwise.
24. DEFINITION OF LEGAL CAUSE – 3.20
A legal cause of any injury is a cause which, in the natural and continuous sequence, produces an injury, and without which the injury would not have occurred.
25. DUTY OF A PHYSICIAN – 6.10
A physician who undertakes to perform professional services for a patient must use reasonable care to avoid causing injury to the patient. The knowledge and care required of the physician is the same as that of other reputable physicians practicing in the same or a similar community and under similar circumstances. A physician not only must have that degree of learning and skill ordinarily possessed by other reputable physicians but also must use the care and skill ordinarily used in like cases. In applying that skill and learning, a physician is required to use reasonable diligence and best judgment in an effort to accomplish the purpose of the employment. A failure to have and use such knowledge and skill is negligence.
26. DUTY OF A SPECIALIST – 6.11
The skill, knowledge and care required of a physician who practices a particular specialty is the same as that of other reputable physicians who specialize in the same field and practice in the same or a similar community and under similar circumstances.
27. PERFECTION NOT REQUIRED – 6.12

Informed Consent
By undertaking treatment, a physician does not guarantee a good result. A physician is not negligent merely because of an unsuccessful result or an error in judgment. An injury alone does not raise a presumption of the physician’s negligence. It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions.
28. STANDARD OF MEDICAL CARE DETERMINED BY EXPERT TESTIMONY – 6.18
It is your obligation to determine the recognized standard of acceptable professional practice in Dr. Thomas’s profession for this or a similar community. In making this determination, you may consider only the opinions of the physicians, including Dr. Thomas, who have testified concerning the standard. Consider each opinion and the reasons given for the opinion, as well as the qualifications of the witnesses, giving each opinion the weight you believe it deserves. The testimony of a physician as to what that physician personally would do or would not do or the personal opinion of a physician of what should or could not have been done does not prove the standard of medical practice.
29. COMPENSATORY DAMAGES – 14.01
If you decide that the Plaintiff is entitled to damages, then you must fix an amount that will reasonably compensate him for each of the following elements of claimed loss or harm, if you find it was or will be suffered by him, was caused by the negligence of the Defendants, and is proven by a preponderance of the evidence. Each of these elements of damages is separate. You may not duplicate damages for any element by also including that same loss or harm in another element of damages.
30. PERSONAL INJURY – 14.10
If proven by a preponderance of the evidence, the Plaintiff shall be awarded the following elements of damages experienced in the past:
1. Physical pain and suffering,
2. Mental or emotional pain and suffering,
3. Loss of capacity for the enjoyment of life, and
4. Disfigurement.
You shall also award compensation for the present cash value of:
1. Physical pain and suffering,
2. Mental or emotional pain and suffering,
3. Loss of capacity for the enjoyment of life, and
4. Disfigurement reasonably certain to be experienced by Mr. Derrick in the future.
Pain and suffering encompasses the physical discomfort caused by an injury. Mental or emotional pain and suffering encompasses anguish, distress, fear, humiliation, grief, shame, or worry. Disfigurement is a specific type of permanent injury that impairs a plaintiff’s appearance. Damage for the loss of enjoyment of life compensates the injured person for the limitations placed on the ability to enjoy the pleasures of life. Impairment of physical function prevents a person from living life in comfort by adding inconvenience or loss of physical ability.
There is no mathematical formula for computing reasonable compensation for physical pain and suffering, mental or emotional pain and suffering, disfigurement, and loss of capacity for the enjoyment of life, nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for such damages, you must use your best judgment and establish an amount of damages that is fair and reasonable in light of the evidence before you.
31. MEDICAL EXPENSES – 14.11
The next element of damages that the Plaintiff may recover is the value of reasonable and necessary expenses incurred for medical care, services, and supplies.
32. LOSS OF EARNING CAPACITY – 14.13
The next element of damages that the Plaintiff can recover is the present cash value of the ability to earn money that is reasonably certain to be lost in the future. In deciding what, if any, award should be made for loss of the ability to earn, you should consider any evidence of the Plaintiff’s earning capacity, including among other things, his health, age, character, occupation, past earnings, intelligence, skill, talents, experience, and record of employment. The loss of the ability to earn money may include, but is not limited to, actual loss of income.
33. DAMAGES FOR PERMANENT INJURIES – 14.16
The Plaintiff claims damages for permanent injury. To recover damages for permanent injury, he must prove the future effect of the injury with reasonable certainty. While it is not necessary that the evidence show conclusively or absolutely that the injury is permanent, you may not award damages for a permanent injury based upon a mere conjecture or possibility.
34. DETERMINING FUTURE DAMAGES WITHOUT SPECULATING – 14.50
If you are to determine a party’s damages, you must compensate that party for loss or harm that is reasonably certain to be suffered in the future as a result of the injury in question. You may not include speculative damages, which is compensation for future loss or harm that, although possible, is conjectural or not reasonably certain.
35. LIFE EXPECTANCY – 14.53
The life expectancy read to you from a chart or table is not conclusive but is the average life expectancy of persons who have reached a certain age. You should be aware that many persons live longer, and many die sooner than the average. This figure may be considered by you in connection with the other evidence relating to the probable life expectancy of the Plaintiff including evidence of his health, occupation, habits, and other activities and the testimony of experts in the field of life expectancy.
36. PRESENT CASH VALUE
I have used the expression “present cash value” in these instructions concerning damages for future losses that may be awarded to the Plaintiff. In determining the damages arising in the future, you must determine the present cash value of those damages. That is, you must adjust the award of those damages to allow for the reasonable earning power of money and the impact of inflation. “Present cash value” means the sum of money needed now which, when added to what that sum may reasonably be expected to earn in the future when invested, would equal the amount of damages, expenses, or earnings at the time in the future when the damages from the injury will be suffered, or the expenses must be paid, or the earnings would have been received. You should also consider the impact of inflation, its impact on wages, and its impact on purchasing power in determining the present cash value of future damages.
37. FINAL INSTRUCTIONS
Members of the Jury:
You have now heard all of the evidence in the case, as well as the final arguments of the lawyers for the parties. It is now my duty to instruct you on the rules of law that you must follow and apply to arrive at a verdict. (15.01) It is your duty to find the facts from all the evidence in the case. After you determine the facts, you must apply the law that has been given to you, whether you agree with it or not. You must not be influenced by any personal likes or dislikes, prejudice or sympathy. You must decide the case solely on the evidence before you and according to the law given to you. (15.01)
All of the instructions are equally important. The order in which these instructions are given has no significance. You must follow all of the instructions and not single out some and ignore others. (15.02) Do not attach significance to any instructions that seem repetitive.
There is more than one defendant in this lawsuit. If you find that one defendant is at fault, you are not required to return a verdict against both. You will decide each defendant’s case separately. Each defendant is entitled to fair and separate consideration. Unless you are instructed to the contrary, the instructions apply to the facts of each defendant’s case. (15.08)
Although you must only consider the evidence in the case in reaching your verdict, you are not required to set aside your common knowledge. You are permitted to weigh the evidence in the light of your common sense, observations and experience. (15.04)
As jurors, you are the judges of the facts. However, in reaching your decision on the facts, it is your sworn duty to follow the law I am now defining for you. You must follow all of my instructions as a whole. You have no right to disregard or give special attention to any one instruction. You have no right to question the wisdom or correctness of any that law I state to you. You must not substitute or follow your own opinion of what the law is or ought to be. It is your solemn duty to apply the law as I give it to you regardless of the consequences.
It is also your duty to base your verdict solely upon the testimony and evidence in the case without prejudice or sympathy. That was the promise you made and the oath you took before the parties accepted you as jurors in this case. The parties have the right to expect each of you to fulfill your solemn promise and oath to follow the law as judges of the facts.
As stated earlier, it is your duty to determine the facts. In so doing, you must consider only the evidence I have admitted in the case. The term “evidence” includes the sworn testimony of the witnesses, any stipulations of the parties, and the exhibits admitted into the record.
Remember that any statements, objections, or arguments made by the lawyers are not evidence in this case. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case. Their job is to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in this case.
During the course of trial, I occasionally make comments to the lawyers. I occasionally ask questions of a witness. I occasionally admonish a witness concerning the manner in which the witness should respond to the questions of counsel. Do not assume from anything I have said or any questions I may have asked that I have any opinion concerning the facts or issues in this case. Do not to consider any statements I made during the presentation of evidence or testimony in this case as a comment or opinion in favor of one party or against another party. Except for my instructions to you on the law, you should completely disregard anything I said during the trial in arriving at your own finding of the facts.
In reaching your verdict, you may consider only the evidence that was admitted. Remember that any questions, objections, statements, or arguments made by the lawyers during the trial are not evidence. If the lawyers have stipulated or agreed to any fact, however, then you will regard that fact as having been proved. Testimony that the Court instructed you to disregard is not evidence and must not be considered by you in deliberations. If the Court instructed you to receive evidence only for a limited purpose, then you must consider that evidence only for that limited purpose during deliberations. You are to decide the case solely on the evidence received at trial. (15.03)
Although you must only consider the evidence in this case in reaching your verdict, you are not required to set aside your common knowledge. You are permitted to weigh the evidence in the light of your common sense, observations and experience. (15.04)
The Court has given you various rules of law to help guide you to a just and lawful verdict. Whether some of these instructions will apply will depend upon what you decide the facts are. The Court’s instructions on any subject must not be taken by you to indicate the Court’s opinion of the facts you should find or the verdict you should return.
Some of you have notes during the trial. Once you retire to the jury room, you may refer to your notes. Only use your notes to refresh your own memory of a witness’s testimony. You are free to discuss the testimony of the witnesses with your fellow jurors, but each of you must rely upon your own individual memory as to what a witness did or did not say. In discussing the testimony, you may not read your notes to your fellow jurors or otherwise tell them what you have written. You should never use your notes to persuade or influence other jurors. Your notes are not evidence. Your notes should carry no more weight than the unrecorded recollection of another juror.
Your attitude and conduct at the beginning of your deliberations are very important. It is rarely productive for any juror immediately to announce a determination before deliberations or discussions take place. Taking that position might make it difficult for you to consider the opinions of your fellow jurors or change your mind, even if you later decide that you might be wrong. Please remember that you are not advocates for one party or another. You are the judges of the facts in this case. (15.15)
Each of you should deliberate and vote on each issue to be decided. Before you return your verdict, however, each of you must agree on the verdict so that each of you will be able to state truthfully that the verdict is yours. (15.16) The verdict you return to the Court must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to the verdict. Your verdict must be unanimous. (15.17)
It is your duty to consult with one another and to reach an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and to change your opinion if you are convinced that it is not correct. But, do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or just to return a verdict. (15.17)
The law forbids you to determine any issue in this case by chance. If you decide that a party is entitled to recover damages, you must not arrive at the amount of those damages by agreeing in advance: 1) to use each juror’s independent estimate of the amount to be awarded; 2) to total those amounts; 3) to divide the total by twelve; and 4) to make the resulting average the amount that you award (15.18).
A verdict arrived at in this manner would be illegal and could not stand. Fair and just compensation is an amount that all jurors can agree upon of their own free will after that particular amount has been discussed and all the jurors are satisfied with it.
If a question arises during deliberations and you need further instructions, please print your question on a sheet of paper, knock on the door of the jury room, and give the question to my court officer. I will read your question and I may call you back into the courtroom to try to help you. Please understand that I may only answer questions about the law and I cannot answer questions about the evidence (15.19).
You will now retire and select one of you to be the presiding juror for your deliberations. You may deliberate only when all of you are present in the jury room. You may not resume your deliberations after any breaks until all of you have returned to the jury room. As soon as all of you have agreed upon a verdict, the presiding juror will complete and sign the verdict form. Any verdict must represent the considered judgment of each juror.
When you have reached unanimous agreement as to your verdict, you will have your foreperson complete, date and sign the forms, and then return to the courtroom.

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