Climate Change Project

Table of Contents



Introduction to Missouri Approved Instructions - 2.01 - 3.01

2.00     [1996 Revision] Submissions in Multi-Party or in Multi-Claim Litigation-General Comment

A. The Need for Better Organized Instructions in Complex Litigation

The former MAI system worked well in a simple case where one plaintiff brings one claim against one defendant. As litigation has become more complex, it is not unusual for several plaintiffs and several defendants to be combined in the same lawsuit with the various plaintiffs often making claims for different losses based on differing theories of liability and with the various defendants counterclaiming or maintaining cross-claims or filing third-party petitions for apportionment of fault or asserting other theories of recovery. The former MAI system has been modified and supplemented to meet the needs of such multi-claim litigation.

B. Packaging

Much of the complexity in instructions in such a case results from the large number of instructions necessary to properly submit the case. To aid the jury in understanding and organizing this large number of instructions, the Court has adopted a method of arranging and organizing the various instructions in such a case by grouping together the general instructions which apply generally to the overall litigation and placing in separate packages the specific instructions which apply to a particular claim. This system, called "packaging," is to be used as described herein in all cases having more than one verdict form. Such a case (one having more than one verdict form) is referred to herein as a "complex case." The primary purpose of "packaging" is to aid the jury in complex litigation in moving through the instructions and thus through their deliberations from one claim to another in an organized and understandable manner. One could describe the concept of "packaging" as a series of mini-sets of instructions, each of which is a subdivision of the overall set of instructions in the case. Once the general instructions which apply to the entire case have been given, each "package" will constitute a complete package of the remaining instructions applicable to a particular claim followed at the end of the package by the verdict form on which the jury will return its verdict as to that claim.

After the close of the evidence, MAI 2.03, an introductory instruction, is to be given in every case. This is to be followed by all of the instructions which apply generally to more than one claim in the case. This will include the burden of proof instruction, definition instructions of terms used in more than one claim, MAI 2.02 Facts Not Assumed, which is no longer required to be given immediately before the Form of Verdict instruction, and MAI 2.04, which designates the number of claims in a multi-claim case and instructs that nine or more jurors may return a verdict.

The remaining instructions which apply to a particular claim will then be "packaged" by claim. Each of these packages will begin with MAI 2.05, which specifies the particular instructions which apply to the particular claim described therein and refers the jury to the appropriate verdict form. MAI 2.05 will be followed by all of the instructions which apply only to that particular claim. These would include one or more verdict directors, one or more converse instructions if they are used, the appropriate affirmative defense instruction, the damage instruction, and any definitions which are applicable only to this claim. The last page of the package will be the verdict form, which will be designated alphabetically (A, B, C, etc.) rather than numerically. Further packages consisting of MAI 2.05, the other instructions applying to a particular claim, and a further verdict form will make up such other packages as are necessary to submit the case fully in an organized and understandable manner.

The set of general instructions and each package is to be stapled separately or similarly fastened so as not to be readily separated. These packages should then be stacked together in the appropriate order and the entire set of instructions secured together with a removable fastener such as a paper clip or other appropriate binder clip. The arrangement should be such that the jury can separate the packages if they wish and each package, except the package of general instructions, will begin with MAI 2.05 and end with a verdict form which the jury will complete.

C. Packaging Not Applicable To "Simple" Cases

"Packaging" is designed to simplify the submission of complex cases. In a simple case, where only one claim is involved, "packaging" is not necessary and to require its use in such a case would only serve to complicate the system. At the same time, the Court does not wish to create a trap for the unwary by drawing technical distinctions as to when "packaging" is or is not required. As discussed in Section E hereof, the basis for "packaging" (by claim or otherwise) is for the determination of the trial judge based on what will present the case to the jury in a manner which will best allow them to consider all the issues in the case in an organized, understandable, and comprehensible manner. If the basis for "packaging" decided upon by the trial court results in two or more packages in addition to the package of general instructions, then the general "packaging" rules for multi-claim cases will apply. A simple and effective way to recognize and describe such a case is that it will be any case in which two or more verdict forms are used (since each package other than the package of general instructions ends with a verdict form).

In a case in which there is only one verdict form, there will be only one package containing both the general instructions and all other instructions. In such a case, referred to herein as a "simple" case, the Court will give the same general instructions in the same order as is described in Paragraph B above for multi-claim cases. These general instructions will be followed by the other instructions which would otherwise be separately packaged in a multi-claim case except that MAI 2.05 will not be given in a "simple" case. Thus, the single package of instructions in a simple case will begin with MAI 2.01 and end with the verdict form.

In summary, the packaging rules to be followed in multi-claim cases will be modified as follows for the submission of a "simple" case (one containing only one verdict form):

1. MAI 2.04 is to be modified by omitting the first sentence (see bracketed sentence footnoted number 1 in MAI 2.04).

2. MAI 2.05 is not to be given in the "simple" case.

3. All instructions will be contained in a single package.

D. Numbering

Verdict forms will carry a letter designation rather than a number, i.e., A, B, C, etc. All other instructions will be numbered sequentially beginning with MAI 2.01 which will be Instruction No. 1 and followed by MAI 2.03 numbered Instruction No. 2 and the other general instructions. The numbering will then continue sequentially through the instructions in the various packages so that, for example, in a complex case one package may consist of instructions Nos. 8 through 14 and Verdict Form A and the next package of instructions Nos. 15 through 21 and verdict form B, etc.

E. The Basis for Packaging

Subject to the specific directions set out herein, the trial judge has discretion to determine the order in which the instructions will be given. It will be up to the trial judge to determine the basis for "packaging" of a complex case so that the overall instructions will present the case to the jury in a manner which will best allow them to consider all of the issues in the case in an organized, understandable, and comprehensible manner. In most instances, the case should be packaged so that the claim for damages of each party asserting a claim for damages will be covered by a separate package.

For example, if plaintiff A is claiming damages for personal injuries, all of the instructions applicable to this claim would be included in one package. If plaintiff A is proceeding on alternative theories of negligence and strict liability, the verdict directors for both such theories would be included in the same package. If plaintiff A is making his claim against both defendant X and defendant Y, the verdict directors against both defendants would be included in the package. If these defendants claim that plaintiff A was contributorily negligent, the contributory negligence instruction would also be included in the package. Any other instructions necessary to this claim such as plaintiff A's damage instruction would likewise be included in the package.

If defendant X is asserting a counterclaim against plaintiff A for property damage, this would constitute a second claim and would be submitted in a second package. If defendant Y was claiming Apportionment of Fault from defendant X, this would be a third claim and would be submitted in a third package.

While "packaging" based on the claim asserted will be the most common basis upon which most cases will be packaged, there is no rigid requirement as to the criteria for "packaging." It should be done in any manner which will submit the case to the jury in a well-organized, understandable, and comprehensible manner.

F. Describing the Claim Covered by the Package

MAI 2.05, the introductory instruction for each individual package, and the verdict form should include a descriptive phrase which describes and identifies the claim which is being submitted in that package. Since MAI 2.05 limits the intervening instructions to the claim described in MAI 2.05 and submitted in that package, it is not necessary that each instruction in the package contain this descriptive phrase. However, certain instructions in the package may require further identification if they do not apply to the entire claim covered by the package. For example, if the package submits a claim against more than one defendant requiring separate verdict directors for each defendant, the verdict directors must be modified to identify the defendant to which each applies. In such a situation, the first line of the instruction would be changed to read, "Your Verdict must be for plaintiff Jones against defendant Smith if you believe:".

Identifying phrases should be as non-inflammatory and as neutral as possible and should avoid the assumption of disputed facts. The following are examples of the types of identifying phrases which are appropriate to describe the claim in the first (MAI 2.05) and last (verdict form) instruction of each package:

... on the claim of plaintiff Joe Smith for personal injuries ...

... on the claim of plaintiff Susie Smith for damages as a result of any injury to her husband ...

... on the claim of plaintiff Joe Smith and Susie Smith for property damage ...

... on the claim of defendant John Jones for personal injuries ...

... on the claim of plaintiff Mary Adams for the death of her husband....

If plaintiff claims damages for more than one type of injury in the same package (such as for his own personal injuries and for loss of consortium for injuries to his wife) under circumstances where he may be entitled to recover one type of damage even if he does not recover on the other, a description of both claims in the verdict form may be misleading because it may suggest he cannot recover on either unless he recovers on both. For example, the verdict form would state, "On the claim of plaintiff for personal injuries and for damages for any injury to his wife, against defendant, we, the undersigned jurors, find in favor of:...." This ambiguity can be avoided by omitting the specific reference to both types of damages so that the verdict form will read, "On the claim of plaintiff against defendant, we, the undersigned jurors, find in favor of:...." The same problem arises when plaintiff seeks damages for both personal injury and property damage.

G. Multiple Theories -- Overlapping Damages

In complex litigation with multiple theories of liability (e.g. -- commercial litigation), elements of damages under various theories may be identical in some respects, distinct in others, and overlapping in still others. The issue will then arise as to whether multiple theories should be submitted in a single package (with a single damage instruction and a single verdict form) or in separate packages (with a separate damage instruction and a separate verdict form for each theory). The Committee takes no position requiring a particular approach in all such cases. The facts and law applicable to each case will determine the best approach in a given case. The problems to be considered in making the selection of a single package or multiple package approach include the issues of duplicate or overlapping damages, the judgment to be entered if a jury returns damages on more than one theory submitted as separate packages, and the effect of a reversal on appeal on one theory but an affirmance on another. Care should be taken to thoroughly consider the impact of duplicate or overlapping damages under separate theories so that the jury is given adequate guidance on the elements of damages and an appropriate means to express the jury's intent without confusion as to the total judgment to be entered by the trial court. See: Illustration 35.15 for a method of submitting multiple theories in a single package; and MAI 36.02, 36.10, and 36.22 for methods of fashioning a verdict form with categories of damages.

H. Conclusion

The unique virtue of the MAI system is the recognition that the primary purpose of the instructions in a case is to convey to the jury the law applicable to the case in an understandable, non-argumentative and non-technical manner. "Packaging" is designed to help meet this goal. No rigid set of specific rules can insure understanding and comprehension for every juror and every type of complex case. "Packaging" is not intended to be a rigid set of rules; it is a tool for lawyers and judges to use with judgment and with consideration for all the facts and circumstances involved in the particular case. If "packaging" is misused as a tool of advocacy to benefit one party and to the detriment of another, it will not serve the purpose for which it is designed. When lawyers and judges use "packaging" in a bona fide effort to present the jury with an organized, understandable and comprehensible set of instructions, it will serve as a major step forward in improving and perfecting the MAI system to meet the demands of modern litigation.

2.01      [1996 Revision] Explanatory Instruction for All Cases

This instruction and other instructions which I will read to you near the end of the trial are in writing, and all of the written instructions will be handed to you for guidance in your deliberation when you retire to the jury room. They will direct you concerning the legal rights and duties of the parties and how the law applies to the facts which you will be called upon to decide.

The trial may begin with opening statements by the lawyers as to what they expect the evidence to be. At the close of the evidence, the lawyers may make arguments on behalf of their clients. Neither what is said in opening statements or in closing arguments is to be considered as proof of a fact. However, if a lawyer admits some fact on behalf of his client, the other party is relieved of the responsibility of proving that fact.

After the opening statements, the plaintiff{s} will introduce evidence. After that, the defendant{s} may introduce evidence and there may be rebuttal evidence after that. The evidence may include the testimony of witnesses who appear personally here in court, the testimony of witnesses who may not appear personally but whose testimony may be read or shown to you, and exhibits such as pictures, documents, and other objects.

While the trial is in progress, I may be called upon to determine questions of law and to decide whether these matters may be considered by you under the law. No ruling or remark which I may make at any time during the trial will be intended or should be considered by you to indicate my opinion as to the facts. There may be times when the lawyers come up to talk to me out of your hearing. This will be done in order to permit me to decide questions of law. These conversations will be out of your hearing to prevent issues of law, which I must decide, from becoming mixed with the issues of fact, which you must decide. We will not be trying to keep secrets from you.

After all of the evidence has been presented, and you have received my final instructions and heard the closing arguments of the lawyers, you will retire to the jury room for your deliberations. At that time it will be your duty to select a foreperson, to decide the facts, and to arrive at a verdict.

Justice requires that you not make up your mind about the case until all of the evidence has been seen and heard. You must not comment on or discuss what you may hear or learn in the trial until the case is concluded and you retire to the jury room for your deliberations. During the trial, you should not remain in the presence of anyone who is discussing the case when the court is not in session. Otherwise, some outside influence or comment might influence a juror to make up his or her mind prematurely and be the cause of a possible injustice. For this reason, the lawyers and their clients are not permitted to talk with you until the trial is completed.

When you enter into your deliberations, you will be considering the testimony of witnesses as well as other evidence to which I have referred. In considering the weight and value of the testimony of any witness, you may take into consideration the appearance, attitude, and behavior of the witness, the interest of the witness in the outcome of the case, the relation of the witness to any of the parties, the inclination of the witness to speak truthfully or untruthfully, and the probability or improbability of the witness' statements. You may give the testimony of any witness such weight and value as you believe that testimony is entitled to receive.

There will be some matters which will be offered by the parties and to which objections will be made. If I overrule the objections, you may consider that matter when you deliberate on the case. If I sustain an objection, then that matter and any matter I order to be stricken is excluded and must not be considered by you in your deliberations.

{Each of you may take notes in this case but you are not required to do so. I will give you notebooks. Any notes you take must be in those notebooks only. You may not take any notes out of the courtroom before the case is submitted to you for your deliberations. No one will read your notes while you are out of the courtroom. If you choose to take notes, remember that notetaking may interfere with your ability to observe the evidence and witnesses as they are presented.

Do not discuss or share your notes with anyone until you begin your deliberations. During your deliberations, if you choose to do so, you may use your notes and discuss them with other jurors. Notes taken during trial are not evidence. You should not assume that your notes, or those of other jurors, are more accurate than your own recollection or the recollection of other jurors.

After you reach your verdict, your notes will be collected and destroyed. No one will be allowed to read them.}

2.02      [1980 Revision] Facts Not Assumed

In returning your verdict{s} you will form beliefs as to the facts. The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are.

2.03      [1980 New] Explanatory-Order of Instructions

As you remember, the court gave you a general instruction before the presentation of any evidence in this case. The court will not repeat that instruction at this time. However, that instruction and the additional instructions, to be given to you now, constitute the law of this case and each such instruction is equally binding upon you. You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. The order in which the instructions are given is no indication of their relative importance. All of the instructions are in writing and will be available to you in the jury room.

2.04      [1981 Revision] Explanatory-Return of Verdict

{There are {} claims submitted to you and each of them contains a separate verdict form.} The verdict form{s} included in these instructions contain{s} directions for completion and will allow you to return the permissible verdict{s} in this case. Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it.

2.05      [1980 New] Multi-Claim Submissions-Designation of Applicable Instructions

Instructions {} through {} and general instructions 1 through {} apply to the claim of {here insert party and designation of claim such as "plaintiff Joe Smith for personal injury"}. Use Verdict {} to return your verdict on this claim.

{3.01 [1998 Revision] Burden of Proof -- General}

In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you. {The burden is upon plaintiff to cause you to believe that the evidence has clearly and convincingly established the propositions of fact required for the recovery of punitive damages as submitted in Instruction Number {} {insert the number of the punitive damage instruction). However, on all other propositions of fact,} (T)he burden is upon the party who relies upon any such proposition to cause you to believe that such proposition is more likely to be true than not true. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition.


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