Free Proposed Jury Instructions - District Court of Arizona - Arizona

Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected]; [email protected] Attorneys for Defendants Corrections Corporation of America and Stolc Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 and Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 Attorneys for Plaintiff Cheryl Allred

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred Plaintiff, v. Corrections Corporation of America, Inc.; Bruno Stolc Defendants. Defendants Corrections Corporation of America ("CCA") and Warden Stolc, with Plaintiff Cheryl Allred, through their respective counsel, hereby submit the following Jury Instructions for consideration by the Court as follows: NO. CIV 03-2343 PHX-DGC JOINT PROPOSED JURY INSTRUCTIONS

Case 2:03-cv-02343-DGC

Document 150

Filed 01/04/2006

Page 1 of 64

I.

2001 NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS The proposed Ninth Circuit Model Civil Jury Instructions are attached

hereto as Exhibit 1. A. ST ST ST ST ST ST ST ST ST ST DF ST ST B. ST ST DF ST DF
1

Preliminary § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 § 1.10 § 1.11 § 1.12 § 1.13 Duty Of Jury Claims and Defenses What Is Evidence1 What Is Not Evidence Evidence For Limited Purpose Direct And Circumstantial Evidence Rulings On Objections Credibility Of Witnesses Conduct Of The Jury No Transcript Available To The Jury Taking Notes Outline Of Trial Burden Of Proof - Preponderance Of The Evidence

Instructions During Trial § 2.1 § 2.2 § 2.3 § 2.6 § 2.11 Cautionary Instruction-First Recess Bench Conferences And Recesses Stipulated Testimony Deposition As Substantive Evidence Impeachment By Conviction Of Crime

Plaintiff stipulates to this instruction as long as the bracket language of affirmative defenses is used both times in the instruction. 2 Case 2:03-cv-02343-DGC Document 150 Filed 01/04/2006 Page 2 of 64

DF C. ST ST ST ST ST ST ST ST ST DF D. ST DF ST ST ST E. ST

§ 2.13

Use Of Interrogatories Of A Party

Instructions At End of Case § 3.1 § 3.2 § 3.3 § 3.5 § 3.6 § 3.7 § 3.9 § 3.10 § 3.11 § 3.12 Duties Of Jury To Find Facts And Follow Law What Is Evidence What Is Not Evidence Direct And Circumstantial Evidence Credibility Of Witnesses Opinion Evidence, Expert Witnesses Charts and Summaries Not Received in Evidence Charts And Summaries In Evidence Two Or More Parties - Different Legal Rights Impeachment Of Evidence - Witnesses2

Concluding Instructions-Jury Deliberations § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 Duty To Deliberate Use Of Notes Communication With Court Return of Verdict Additional Instructions of Law

Burden of Proof § 5.1 Burden of Proof - Preponderance of the Evidence 3

2

Bracketed language to be inserted "Plaintiff has been convicted of a felony."
3

Plaintiff stipulates to this instruction as long as the bracket language of affirmative defenses is used both times in the instruction. 3 Case 2:03-cv-02343-DGC Document 150 Filed 01/04/2006 Page 3 of 64

P

§ 6.2 Liability of Corporations - Scope of Authority Not In Issue

F. ST PL DF DF II.

Damages § 7.1 § 7.2 § 7.2 § 7.3 Damages - Proof Measure of Type of Damages4 Measure of Types of Damages 5 Damages - Mitigation

STIPULATED NON-MODEL JURY INSTRUCTIONS None.

4

The types of damages to be considered are: 1. The nature and extent of the injuries; 2. The disability, disfigurement, and loss of enjoyment of life experienced and which with reasonable probability will be experienced in the future; 3. The mental, physical, and emotional pain and suffering experienced and which with reasonable probability will be experienced in the future; 4. The reasonable value of necessary medical care, treatment, and services received to the present time; 5. The reasonable value of necessary medical care, treatment, and services which with reasonable probability will be required in the future; 6. The reasonable value of necessary household help, services other than medical and expenses required to the present time; 7. The reasonable value of necessary household help, services other than medical and expenses which with reasonable probability will be required in the future;
5

The types of damages to be considered are: 1. The nature, extent, and duration of the injury. 2. The pain, discomfort, suffering and anxiety already experienced. 3. Loss of enjoyment of life, that is, the participation in life's activities to the quality and extent normally enjoyed before the injury. 4 Case 2:03-cv-02343-DGC Document 150 Filed 01/04/2006 Page 4 of 64

III.

NON-MODEL PLAINTIFF

JURY

INSTRUCTIONS

REQUESTED

BY

The following instructions proposed by Plaintiff are Arizona Jury Instructions (Civil) Fourth Edition, as modified where indicated and are attached hereto as Exhibit 2. 1. Statement of Claim; Definition of Fault; Definition of

Negligence (No Comparative Fault). Defendants' Objection: Defendants object to this

instruction as Defendants have properly alleged that the unknown and unidentified inmates who allegedly raped Plaintiff are at fault for Plaintiff's claimed injuries. The only remaining claim in this case is Plaintiff's negligence claim asserted under Arizona state law. Defendants filed a timely Notice of NonParty at Fault, pursuant to A.R .S. § 25-2606, on April 1, 2004. The Notice specifically set forth, in compliance with A.R.S. § 25-2606, that the inmate or inmates who Plaintiff alleges raped her are at fault for damages sought in this action. Defendants contend that the alleged rape did not occur. Plaintiff has never identified her alleged rapists. What is not in dispute is that Plaintiff alleges that an inmate or inmates raped her. Consequently, that neither Plaintiff nor Defendants are able to identify the unknown alleged rapists by name does not defeat Defendants' appropriate and timely Notice of Non Party at Fault. Therefore, the comparative fault instructions proposed by Plaintiff are appropriate here. See Jim enez v. Sears, Roebuck and Co., 183 Ariz. 399, 404, 904 P.2d 861, 866 (1995) ("We have recognized that the general goal of the present version of the UCATA is to make each tortfeasor responsible for only its hare of fault."); Natesway v. City of Tempe, 184 Ariz. 374, 376, 909 P.2d 441, 443 (App. 1995) (stating comparative fault principles apply regardless of the relationship between the parties and the nature of the duty ow ed); Thomas v. First Interstate 5 Case 2:03-cv-02343-DGC Document 150 Filed 01/04/2006 Page 5 of 64

Bank, 187 Ariz. 488, 930 P.2d 1002 (App. 1996) (stating that even willful, wanton and intentional tortfeasors, who may be essentially judgment proof, may be non parties at fault and finding bank guard's murderer in a wrongful death action may be named as a non-party at fault); McKillip v. Smitty's Super Value, Inc., 190 Ariz. 61, 945 P.2d 372 (App. 1997) (finding fault could be allocated to unidentified customer who may have left a piece of waxed tissue paper on the store floor, causing the plaintiff to slip and fall); Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433-34, 937 P.2d 353, 355-56 (App. 1996) (finding jury may apportion fault under A.R.S. § 12-2506, to unidentified attackers involved in a bar fight); Smith v. Johnson, 183 Ariz. 38, 44, 899 P.2d 199, 206 (App. 1995) (finding jury may consider allocating fault to an unidentified driver of a red Mercedes Benz who might have flagged another motorist into the subject accident).

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2.

Definition of Causation (No Comparative Fault) Defendants' Objection: Defendants object to this

instruction as Defendants have properly alleged that the unknown and unidentified inmates who allegedly raped Plaintiff are at fault for Plaintiff's claimed injuries. The only remaining claim in this case is Plaintiff's negligence claim asserted under Arizona state law. Defendants filed a timely Notice of NonParty at Fault, pursuant to A.R.S. § 25-2606, on April 1, 2004. The Notice specifically set forth, in compliance with A.R.S. § 25-2606, that the inmate or inmates who Plaintiff alleges raped her are at fault for damages sought in this action. Defendants contend that the alleged rape did not occur. Plaintiff has never identified her alleged rapists. What is not in dispute is that Plaintiff alleges that an inmate or inmates raped her. Consequently, that neither Plaintiff nor Defendants are able to identify the unknown alleged rapists by name does not defeat Defendants' appropriate and timely Notice of Non Party at Fault. Therefore, the comparative fault instructions proposed by Plaintiff are appropriate here. See Jim enez v. Sears, Roebuck and Co., 183 Ariz. 399, 404, 904 P.2d 861, 866 (1995) ("We have recognized that the general goal of the present version of the UCATA is to make each tortfeasor responsible for only its hare of fault."); Natesway v. City of Tempe, 184 Ariz. 374, 376, 909 P.2d 441, 443 (App. 1995) (stating comparative fault principles apply regardless of the relationship between the parties and the nature of the duty owed); Thomas v. First Interstate Bank, 187 Ariz. 488, 930 P.2d 1002 (App. 1996) (stating that even willful, wanton and intentional tortfeasors, who may be essentially judgment proof, may be non parties at fault and finding bank guard's murderer in a wrongful death action may be named as a non-party at fault); McKillip v. Smitty's Super Value, Inc., 190

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Ariz. 61, 945 P.2d 372 (App. 1997) (finding fault could be allocated to unidentified customer who may have left a piece of waxed tissue paper on the store floor, causing the plaintiff to slip and fall); Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433-34, 937 P.2d 353, 355-56 (App. 1996) (finding jury may apportion fault under A.R.S. § 12-2506, to unidentified attackers involved in a bar fight); Smith v. Johnson, 183 Ariz. 38, 44, 899 P.2d 199, 206 (App. 1995) (finding jury may consider allocating fault to an unidentified driver of a red Mercedes Benz who might have flagged another motorist into the subject accident).

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3.

Statement of Liability Issues (No Comparative Fault) Defendants' Objection: Defendants' Objection:

Defendants object to this instruction as Defendants have properly alleged that the unknown and unidentified inmates who allegedly raped Plaintiff are at fault for Plaintiff's claimed injuries. The only remaining claim in this case is Plaintiff's negligence claim asserted under Arizona state law. Defendants filed a timely Notice of Non-Party at Fault, pursuant to A.R.S. § 25-2606, on April 1, 2004. The Notice specifically set forth, in compliance with A.R.S. § 25-2606, that the inmate or inmates w ho Plaintiff alleges raped her are at fault for damages sought in this action. Defendants contend that the alleged rape did not occur. Plaintiff has never identified her alleged rapists. What is not in dispute is that Plaintiff alleges that an inmate or inmates raped her. Consequently, that neither Plaintiff nor Defendants are able to identify the unknown alleged rapists by name does not defeat Defendants' appropriate and timely Notice of Non Party at Fault. Therefore, the comparative fault instructions proposed by Plaintiff are appropriate here. See Jim enez v. Sears, Roebuck and Co., 183 Ariz. 399, 404, 904 P.2d 861, 866 (1995) ("We have recognized that the general goal of the present version of the UCATA is to make each tortfeasor responsible for only its hare of fault."); Natesway v. City of Tempe, 184 Ariz. 374, 376, 909 P.2d 441, 443 (App. 1995) (stating comparative fault principles apply regardless of the relationship between the parties and the nature of the duty owed); Thomas v. First Interstate Bank, 187 Ariz. 488, 930 P.2d 1002 (App. 1996) (stating that even willful, wanton and intentional tortfeasors, who may be essentially judgment proof, may be non parties at fault and finding bank guard's murderer in a wrongful death action may be named as a non-party at fault); McKillip v. Smitty's Super Value, Inc., 190

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Ariz. 61, 945 P.2d 372 (App. 1997) (finding fault could be allocated to unidentified customer who may have left a piece of waxed tissue paper on the store floor, causing the plaintiff to slip and fall); Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433-34, 937 P.2d 353, 355-56 (App. 1996) (finding jury may apportion fault under A.R.S. § 12-2506, to unidentified attackers involved in a bar fight); Smith v. Johnson, 183 Ariz. 38, 44, 899 P.2d 199, 206 (App. 1995) (finding jury may consider allocating fault to an unidentified driver of a red Mercedes Benz who might have flagged another motorist into the subject accident).

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IV.

NON-MODEL JURY DEFENDANTS

INSTRUCTIONS

REQUESTED BY

The following instructions proposed by Defendants are Arizona Jury Instructions (Civil) Fourth Edition, as modified where indicated. Defendants' proposed non-model jury instructions are attached hereto as Exhibit 3. 1. RAJI Standard 4 (Civil) 4 th , Corporate Party, as modified Plaintiff's Objection: Plaintiff objects to this instruction because Section 6.2 Liability of a Corporations - Scope of Authority Not an Issue of the Ninth Circuit Model Civil Jury Instructions contains such sought instruction.

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2.

RAJI Standard 5 (Civil) 4 th , Respondeat Superior Liability, as modified Plaintiff's Objection: Plaintiff objects to this instruction

because Section 6.2 Liability of a Corporations - Scope of Authority Not an Issue of the Ninth Circuit Model Civil Jury Instructions contains such sought instruction.

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3.

RAJI Fault 5 (Civil) 4th , Statement of Claim; Definition of Fault; Definition of Negligence (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction,

and the remaining sought non-model instructions for the defendants' failure to specifically identify any alleged non-party at fault. As indicated in the use notes of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault issue, that nonparty will have been specifically disclosed by the defendant making the claim. See Comment, infra. The specific identify of that nonparty should therefore be inserted into the instruction.

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4.

RAJI Fault 6 (Civil) 4 th , Definition of Causation (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction,

and the remaining sought non-model instructions for the defendants' failure to specifically identify any alleged non-party at fault. As indicated in the use notes of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault issue, that nonparty will have been specifically disclosed by the defendant making the claim. See Comment, infra. The specific identify of that nonparty should therefore be inserted into the instruction.

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5.

RAJI Fault 7 (Civil) 4th , Burden of Proof (All Parties) (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction,

and the remaining sought non-model instructions for the defendants' failure to specifically identify any alleged non-party at fault. As indicated in the use notes of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault issue, that nonparty will have been specifically disclosed by the defendant making the claim. See Comment, infra. The specific identify of that nonparty should therefore be inserted into the instruction. Additionally, the defendants grossly modify this jury instruction to remove the burden of proof of the defendants and specifically instruct that CCA must prove that a specifically identified non-party was at fault.

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6.

RAJI Fault 8 (Civil) 4th , Statement of Liability Issues (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction,

and the remaining sought non-model instructions for the defendants' failure to specifically identify any alleged non-party at fault. As indicated in the use notes of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault issue, that nonparty will have been specifically disclosed by the defendant making the claim. See Comment, infra. The specific identify of that nonparty should therefore be inserted into the instruction.

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7.

RAJI Fault 11 (Civil) 4th , Determining Relative Degrees of Fault (Comparative Fault), as modified Plaintiff's Objection: Plaintiff objects to this instruction,

and the remaining sought non-model instructions for the defendants' failure to specifically identify any alleged non-party at fault. As indicated in the use notes of RAJI (Civil) 3d Fault "[i]f the liability or any nonparty is a comparative fault issue, that nonparty will have been specifically disclosed by the defendant making the claim. See Comment, infra. The specific identify of that nonparty should therefore be inserted into the instruction.

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8.

RAJI Personal Injury Damages 2 (Civil) 4th , Pre-Existing Condition, Unusually Susceptible Plaintiff, as modified Plaintiff's Objection: Plaintiff did not have, nor have

defendants demonstrated, any preexisting condition that the gang rape aggravated.

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DATED this

day of January, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By________________________________ Daniel P. Struck Rachel Love Halvorson 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Corrections Correction of America and Stolc ORIGINAL/ONE COPY of the foregoing filed this day of January 2006, with: United States District Court District of Arizona COPY of the foregoing mailed this day of January 2006, to: Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 and Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 Attorneys for Plaintiff Cheryl Allred

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EXHIBIT 1

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1.1 DUTY OF JURY Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be. Comment See Instruction 3.1 (Duties of Jury to Find Facts and Follow Law) for an instruction at the end of the case.

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1.2 CLAIMS AND DEFENSES To help you follow the evidence, I will give you a brief summary of the positions of the parties: The plaintiff claims that [plaintiff's claims]. The defendant denies those claims [and also contends that [defendant's counterclaims and/or affirmative defenses]]. [Plaintiff denies defendant's claims.]

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1.3 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which are received into evidence; and (3) any facts to which the lawyers stipulate.

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1.4 WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) statements and arguments of the attorneys; (2) questions and objections of the attorneys; (3) testimony that I instruct you to disregard; and (4) anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses. Comment See Instruction 3.3 (What Is Not Evidence) for an instruction at the end of the case.

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1.5 EVIDENCE FOR LIMITED PURPOSE Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other. Comment As a rule, limiting instructions need only be given when requested and need not be given sua sponte by the court. United States v. McLennan, 563 F.2d 943, 947­48 (9th Cir.1977), cert. denied, 435 U.S. 969 (1978). See United States v. Marsh, 144 F.3d 1229, 1238 (9th Cir.1998) (when the trial court fails to instruct the jury in its final instructions regarding the receipt of evidence for a limited purpose, the Ninth Circuit examines the trial court's preliminary instructions to determine if the court instructed the jury on this issue). See also Instructions 2.10 (Limited Purpose Evidence), 2.11 (Impeachment by Conviction of Crime), and 3.3 (W hat Is Not Evidence).

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1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence. Comment See Instruction 3.5 (Direct and Circumstantial Evidence) for an instruction at the end of case. It may be helpful to include an illustrative example in the instruction: By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may explain the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.

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1.7 RULING ON OBJECTIONS There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard. Comment See Instruction 3.3 (What Is Not Evidence) for an instruction at the end of the case.

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1.8 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. Comment See Instruction 3.6 (Credibility of Witnesses) for an instruction at the end of the case.

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1.9 CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the [bailiff] [clerk] [law clerk] [matron] to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. Comment An abbreviated instruction should be repeated before the first recess and as needed before other recesses. See Instruction 2.1 (Cautionary Instruction at First Recess). The practice in federal court of instructing jurors not to discuss the case until deliberations is widespread. See, e.g., United States v. Pino­Noriega, 189 F.3d 1089, 1096 (9th Cir.) ("There is a reason that most judges continually admonish their juries during trials not to discuss the evidence or begin deliberations until told to do so, after all of the evidence, argument, and instruction on the law has been received."), cert. denied, 528 U.S. 989 (1999).

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1.10 NO TRANSCRIPT AVAILABLE TO JURY At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given. Comment The previous version of this instruction has been modified to delete the suggestion that readbacks are either unavailable or highly inconvenient. The practice of discouraging readbacks has been criticized in United States v. Damsky, 740 F.2d 134, 138 (2d Cir.), cert. denied, 469 U.S. 918 (1984). See also J URY C OMMITTEE OF THE N INTH C IRCUIT , A M ANUAL ON J URY T RIAL P ROCEDURES, § 5.1.F (1998). The court may wish to repeat this instruction in the instructions at the end of the trial.

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1.11 TAKING NOTES If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room]. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes. Comment It is well settled in this circuit that the trial judge has discretion to allow jurors to take notes. United States v. Baker, 10 F.3d 1374, 1402 (9th Cir.1993), cert. denied, 513 U.S. 934 (1994). See also J URY C OMMITTEE OF THE N INTH C IRCUIT , A M ANUAL ON J URY T RIAL P ROCEDURES, § 3.4 (1998).

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1.12 OUTLINE OF TRIAL The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The plaintiff will then present evidence, and counsel for the defendant may cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, [I will instruct you on the law that applies to the case and the attorneys will make closing arguments] [the attorneys will make closing arguments and I will instruct you on the law that applies to the case]. After that, you will go to the jury room to deliberate on your verdict.

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1.13 BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it. Comment See Chapter 5 regarding instructions on burdens of proof. This instruction may not apply to cases based on state law.

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2.1 CAUTIONARY INSTRUCTION-- FIRST RECESS We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the [marshal] [bailiff] [clerk] [law clerk] to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

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2.2 BENCH CONFERENCES AND RECESSES From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

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2.3 STIPULATED TESTIMONY The parties have agreed what [witness]'s testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court. Comment There is a difference between stipulating that a witness would give certain testimony and stipulating that the facts to which a witness might testify are true. United States v. Lambert, 604 F.2d 594, 595 (8th Cir.1979); United States v. Hellman, 560 F.2d 1235, 1236 (5th Cir.1977).

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2.6 DEPOSITION AS SUBSTANTIVE EVIDENCE [When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. The deposition of [witness], which was taken on [date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.] Comment This instruction should be used only when testimony by deposition is offered as substantive evidence. The committee recommends that it be given immediately before a deposition is to be read. It need not be repeated if more than one deposition is read. If the judge prefers to include the instruction as a part of his or her instructions before evidence, it should be modified appropriately.

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2.11 IMPEACHMENT BY CONVICTION OF CRIME The evidence that a witness has been convicted of a crime may be considered only as it may affect the believability of that witness and for no other purpose. Comment If this instruction is given during the trial, the committee recommends giving the bracketed material in paragraph 3 of Instruction 3.3 (What Is Not Evidence) with the concluding instructions. See also Instruction 2.10 (Limited Purpose Evidence).

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2.13 USE OF INTERROGATORIES OF A PARTY Evidence is now to be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions which were submitted in writing under established court procedures. The answers are entitled to the same consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were made from the witness stand. Comment Use this oral instruction before interrogatories and answers are read to the jury. The attorney should warn the judge ahead of time and give the judge an opportunity to give this oral instruction. This oral instruction is not appropriate if answers to interrogatories are being used for impeachment only. Do not use this instruction for requests for admission under Fed. R. Civ. P. 36. The effect of requests for admission under the rule is not the same as the introduction of evidence through interrogatories. If an instruction is needed, a special one will have to be drafted.

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3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW Members of the jury, now that you have heard all the evidence [and the arguments of the attorneys], it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return--that is a matter entirely up to you. Comment See J URY C OMMITTEE OF THE N INTH C IRCUIT , A M ANUAL ON J URY T RIAL P ROCEDURES, § 4.3.B and § 4.3.C (1998). See also Fed. R. Civ. P. 51.

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3.2 WHAT IS EVIDENCE The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which have been received into evidence; and (3) any facts to which the lawyers have agreed or stipulated. Comment See United States v. Mikaelian, 168 F.3d 380, 389 (9th Cir.) (material facts to which the parties voluntarily stipulate are to be treated as "conclusively established") (citing United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976)), amended by 180 F.3d 1091 (9th Cir.1999).

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3.3 WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. W hat they have said in their opening statements, [will say in their] closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. [In addition some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.] (4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial. Comment With regard to the bracketed material in paragraph 3, see Instructions 1.5 (Evidence for Limited Purpose), 2.10 (Limited Purpose Evidence), and 2.11 (Impeachment by Conviction of Crime).

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3.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

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3.6 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

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3.7 OPINION EVIDENCE, EXPERT WITNESSES You have heard testimony from [a] person[s] who, because of education or experience, [is] [are] permitted to state opinions and the reasons for those opinions. Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case. Comment See Fed. R. Evid. 602, 701­05. The committee recommends that this instruction be given only upon request. Since expert testimony is so common in modern jury trials, there is no good reason why it should be treated differently from other testimony.

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3.9 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE Certain charts and summaries that have not been received in evidence have been shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence. Comment This instruction applies only where the charts and summaries are not received into evidence and are used for demonstrative purposes. See United States v. Johnson, 594 F.2d 1253, 1254­55 (9th Cir.), cert. denied, 444 U.S. 964 (1979). See also J URY C OMMITTEE OF THE N INTH C IRCUIT , A M ANUAL ON J URY T RIAL P ROCEDURES § 3.10 (1998).

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3.10 CHARTS AND SUMMARIES IN EVIDENCE Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves. Comment See Fed. R. Evid. 1006. See also J URY C OMMITTEE OF THE N INTH C IRCUIT , A M ANUAL ON J URY T RIAL P ROCEDURES § 3.10 (1998). This instruction may be unnecessary if there is no dispute as to the accuracy of the chart or summary.

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3.11 TWO OR MORE PARTIES--DIFFERENT LEGAL RIGHTS You should decide the case as to each [plaintiff] [defendant] [party] separately. Unless otherwise stated, the instructions apply to all parties.

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3.12 IMPEACHMENT EVIDENCE-- WITNESS You have heard evidence that [witness], a witness, [e.g. has been convicted of a felony, lied under oath on a prior occasion, etc.]. You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe this witness and how much weight to give to the testimony of that witness. Comment Fed. R. Evid. 608 (Evidence of Character and Conduct of Witness) and 609 (Impeachment By Evidence of Conviction of Crime) place restrictions on the use of instances of past conduct and convictions to impeach a witness, and Fed. R. Evid. 105 (Limited Admissibility) gives a defendant the right to request a limiting instruction explaining that the use of this evidence is limited to credibility of the witness.

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4.1 DUTY TO DELIBERATE When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

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4.2 USE OF NOTES Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

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4.3 COMMUNICATION WITH COURT If it becomes necessary during your deliberations to communicate with me, you may send a note through the [marshal] [bailiff], signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone-- including me--how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

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4.4 RETURN OF VERDICT A verdict form has been prepared for you. [Any explanation of the verdict form may be given at this time.] After you have reached unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom. Comment The judge may also wish to explain to the jury the particular form of verdict being used and just how to "advise the court" of a verdict.

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4.5 ADDITIONAL INSTRUCTIONS OF LAW At this point I will give you a further instruction. By giving a further instruction at this time, I do not mean to emphasize this instruction over any other instruction. You are not to attach undue importance to the fact that this was read separately to you. You shall consider this instruction together with all of the other instructions that were given to you. [Insert text of new instruction.] You will now retire to the jury room and continue your deliberations. Comment Use this oral instruction for giving a jury instruction to a jury while it is deliberating. If the jury has a copy of the instructions, send the additional instruction to the jury room. All attorneys must be given an opportunity to be present. Unless the additional instruction is by consent of both parties, both sides must be given an opportunity to take exception or object to it. If this instruction is used, it should be made a part of the record. The judge and attorneys should make a full record of the proceedings. See J URY C OMMITTEE OF THE N INTH C IRCUIT , A M ANUAL ON J URY T RIAL P ROCEDURES, § 5.1.E (1998 & Supp. 2000).

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5.1 BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

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6.2 LIABILITY OF CORPORATIONS-- SCOPE OF AUTHORITY NOT IN ISSUE Under the law, a corporation is considered to be a person. It can only act through its employees, agents, directors, or officers. Therefore, a corporation is responsible for the acts of its employees, agents, directors, and officers performed within the scope of authority.

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7.1 DAMAGES--PROOF It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the plaintiff [on plaintiff's ____ claim], you must determine the plaintiff's damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant. You should consider the following: [Here insert types of damages. See Instruction 7.2--MEASURES OF TYPES OF DAMAGES] The plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or conjecture. Comment If liability is not disputed, this instruction should be modified accordingly.

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7.2 MEASURES OF TYPES OF DAMAGES In determining the measure of damages, you should consider: [The nature and extent of the injuries;] [The [disability] [disfigurement] [loss of enjoyment of life] experienced [and which with reasonable probability will be experienced in the future];] [The [mental,] [physical,] [emotional] pain and suffering experienced [and which with reasonable probability will be experienced in the future];] [The reasonable value of necessary medical care, treatment, and services received to the present time;] [The reasonable value of necessary medical care, treatment, and services which with reasonable probability will be required in the future;] [The reasonable value of [wages] [earnings] [earning capacity] [salaries] [employment] [business opportunities] [employment opportunities] lost to the present time;] [The reasonable value of [wages] [earnings] [earning capacity] [salaries] [employment] [business opportunities] [employment opportunities] which with reasonable probability will be lost in the future;] [The reasonable value of necessary [household help] [services other than medical] [and] [expenses] [_______] required to the present time;] [The reasonable value of necessary [household help] [services other than medical] [and] [expenses] [_______] which with reasonable probability will be required in the future;] [The reasonable value of necessary repairs to any property which was damaged;] [The difference between the fair market value of any damaged property immediately before the occurrence and its fair market value immediately thereafter;] [and] [The reasonable value of necessary repairs to any property which was damaged plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after it is repaired.] [The lesser of the following: 1. the reasonable cost of necessary repairs to any property which was damaged plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after it is repaired; or

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2.

the difference between the fair market value of the property immediately before the occurrence and the fair market value of the unrepaired property immediately after the occurrence.]

[Such sum as will reasonably compensate for any loss of use of any damaged property during the time reasonably required for its [repair] [replacement].] Comment Insert only the appropriate bracketed items into Instruction 7.1 (Damages­Proof). Additional paragraphs may have to be drafted to fit other types of damages. Particular claims may have special rules on damages. See, e.g., Instructions 9.9 (Negligence or Unseaworthiness--Damages--Proof), 9.11 (Jones Act--Maintenance and Cure), and 14.10 (Age Discrimination-- Damages). Punitive and compensatory damages are subject to caps in Title VII cases. See 42 U.S.C. 1981a (b)(3). Regarding the amount of damages available under Title VII, see Gotthardt v. National Railroad Passenger Corp., 191 F.3d 1148 (9th Cir.1999). The cap does not apply to front pay and back pay. See Pollard v. E.I. du Pont de Nemours & Company, ___ U.S. ___, 121 S.Ct. 1946 (2001). See also Caudle v. Bristow Optical Co., 224 F.3d 1014, 1020 (9th Cir.2000) (includes the definition of front pay and back pay); Introductory Comment to Chapter 12.

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7.3 DAMAGES--MITIGATION The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. The defendant has the burden of proving by a preponderance of the evidence: 1. 2. that the plaintiff failed to use reasonable efforts to mitigate damages; and the amount by which damages would have been mitigated. Comment The trier-of-fact is to mitigate damages by discounting awards to present value when there has been received into evidence appropriate discount rates. Passantino v. Johnson & Johnson Consumer Products, Inc. 212 F.3d 493, 509 (9th Cir.2000).

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EXHIBIT 2

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Plaintiff's Proposed Non-Model Jury Instruction No. 1 STATEMENT OF CLAIM; DEFINITION OF FAULT; DEFINITION OF NEGLIGENCE (NO COMPARATIVE FAULT) Cheryl Allred claims that Corrections Corporation of America was at fault. Fault is negligence that was a cause of Cheryl Allred's injury. Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonably careful person would act under the circumstances. SOURCE: RAJI (CIVIL) 3d Fault 1; A.R.S. § 12-2506(F)(2).

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EXHIBIT 3

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Defendants' Proposed Non-Model Jury Instruction No. 1 CORPORATE PARTY A corporation is a party in this lawsuit. Corporations and individuals are entitled to the same fair and impartial consideration and to justice reached by the same legal standards. When I use the word "person" in these instructions, or when I use any personal pronoun referring to a party, those instructions also apply to Corrections Corporation of America ("CCA"). SOURCE: as modified. Revised Arizona Jury Instructions (Civil) 4 th , Standard 4, Corporate Party,

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