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Of Counsel
In Plain English
What It Means Legalese: A preponderance of the evidence. Plain English: More likely than not. Legalese: Failure of recollection is common. Innocent misrecollection is not uncommon. Plain English: People often forget things or make mistakes in what they remember. Source: plainlanguage.gov |
More than half of jurors polled in a Washington, D.C., study defined “preponderance of the evidence” as “slow and careful pondering of the evidence.” More than half also could not define “speculate,” and about a quarter did not know the meaning of “burden of proof,” “impeach” or “admissible evidence.”
While lawyers are trained to parse even the most arcane legalize, the average juror clearly isn’t. Nor should he be expected to, the Supreme Court of Florida decided recently when it approved “plain English” jury instructions for civil cases in the Sunshine State.
Scott Makar, appellate chief in Jacksonville’s Office of General Counsel, chairs the court’s civil jury instructions committee that came up with the changes. He says the process took upward of 10 years. “We would have year-and-a-half debates over single words,” says Makar, whose committee of more than two dozen plaintiff and defense lawyers and judges had to reach consensus on each change.
“Lawyers and judges have memorized these instructions over years, and there’s a natural resistance to change,” Makar says. “Then there’s a worry that if you do make the change, some court somewhere will reverse you.”
California was the first state to adopt a set of plain English jury instructions, a process that also took many years. “Our efforts at this point are much more modest,” says Makar. “But this is definitely a step forward to increasing jurors’ comprehension of the process, their role and what they can expect.”
