Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Garvey M. Biggers, 9932 [email protected] S. Lee White, 17551 [email protected]

Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche;Karolyn Vanden Bossche; and Vandy's Transportation, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Palma Baca Urrutia; Patricia Urrutia-Baca; Luis Javier Urrutia-Baca; Elizabeth UrrutiaBaca; Javier Arturo Urrutia-Arrieta; and Gloria Estela Sandate,

) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) Darrell Lee Ekdahl and ) Jane Doe Ekdahl, ) husband and wife; ) George Vanden Bossche ) and Karolyn Vanden Bossche, ) husband and wife; and Vandy's ) Transportation, Inc., a ) California corporation, ) ) Defendants. ) ______________________________) 1.1 DUTY OF JURY

NO. cv-03-1990-PHX-PGR

DEFENDANTS' PROPOSED CIVIL JURY INSTRUCTIONS, NINTH CIRCUIT

(Assigned to the Honorable Paul G. Rosenblatt)

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1.2 CLAIMS AND DEFENSES
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1.3 WHAT IS EVIDENCE
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1.4 WHAT IS NOT EVIDENCE 1.5 EVIDENCE FOR LIMITED PURPOSE 1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE 1.7 RULING ON OBJECTIONS 1.8 CREDIBILITY OF WITNESSES 1.9 CONDUCT OF THE JURY 1.10 NO TRANSCRIPT AVAILABLE TO JURY 1.11 TAKING NOTES 1.12 OUTLINE OF TRIAL 1.13 BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE (As Modified) 1.14 BURDEN OF PROOF--CLEAR AND CONVINCING EVIDENCE

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1.15 QUESTIONS TO WITNESSES BY JURORS
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1.16 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION 2.1 CAUTIONARY INSTRUCTION--FIRST RECESS 2.2 BENCH CONFERENCES AND RECESSES 2.4 STIPULATIONS OF FACT 2.5 JUDICIAL NOTICE 2.6 DEPOSITION AS SUBSTANTIVE EVIDENCE (As Modified)

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2.9 FOREIGN LANGUAGE TESTIMONY (As Modified)
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2.13 USE OF INTERROGATORIES OF A PARTY
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3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW (As Modified)
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3.2 WHAT IS EVIDENCE

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3.3 WHAT IS NOT EVIDENCE
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3.4 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION (As Modified) 3.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE 3.6 CREDIBILITY OF WITNESSES

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3.7 OPINION EVIDENCE, EXPERT WITNESSES (As Modified)
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3.8 CAUSATION
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3.9 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE
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3.10 CHARTS AND SUMMARIES IN EVIDENCE
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3.11 TWO OR MORE PARTIES--DIFFERENT LEGAL RIGHTS (As Modified) 4.1 DUTY TO DELIBERATE 4.2 USE OF NOTES 4.3 COMMUNICATION WITH COURT 4.4 RETURN OF VERDICT (As Modified) 4.5 ADDITIONAL INSTRUCTIONS OF LAW (As Needed) 4.6 DEADLOCKED JURY 5.1 BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE (As Modified) 5.2 BURDEN OF PROOF--CLEAR AND CONVINCING EVIDENCE (As Modified) 5.3 COMPLETE AFFIRMATIVE DEFENSE 6.1 CORPORATIONS AND PARTNERSHIPS--FAIR TREATMENT

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6.2 LIABILITY OF CORPORATIONS--SCOPE OF AUTHORITY NOT IN ISSUE
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6.4 AGENT AND PRINCIPAL--DEFINITION (As Modified)
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6.5 AGENT--SCOPE OF AUTHORITY DEFINED
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6.6 ACT OF AGENT IS ACT OF PRINCIPAL--

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SCOPE OF AUTHORITY NOT IN ISSUE 6.7 BOTH PRINCIPAL AND AGENT SUED-- NO ISSUE AS TO AGENCY OR AUTHORITY (As Modified)

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1.13 BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE (As Modified) 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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1.16 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION Spanish may be used during this trial. The evidence you are to consider is only that provided through the official court interpreters. Although some of you may know Spanish, it is important that all jurors consider the same evidence. Therefore, you must accept the English interpretation. You must disregard any different meaning.

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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 Alberto Sarate-Saveleta, which was taken on February 12, 2005 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.

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2.9 FOREIGN LANGUAGE TESTIMONY You are about to hear testimony of a witness who will be testifying in Spanish. This witness will testify through the official court interpreter. Although some of you may know Spanish it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness' testimony. You must disregard any different meaning.

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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.

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3.4 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION Spanish has been used during this trial. The evidence you are to consider is only that provided through the official court interpreters . Although some of you may know Spanish, it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English interpretation . You must disregard any different meaning.

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3.7 OPINION EVIDENCE, EXPERT WITNESSES You have heard testimony from persons who, because of education or experience, 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.

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

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4.4 RETURN OF VERDICT A verdict form has been prepared for you. 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.

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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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5.2 BURDEN OF PROOF--CLEAR AND CONVINCING EVIDENCE When a party has the burden of proof on any claim or affirmative defense by clear and convincing evidence, it means you must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard. You should base your decision on all of the evidence, regardless of which party presented it.

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6.4 AGENT AND PRINCIPAL--DEFINITION An agent is a person who performs services for another person under an express or implied agreement and who is subject to the other's control or right to control the manner and means of performing the services. The other person is called a principal.

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6.7 BOTH PRINCIPAL AND AGENT SUED-- NO ISSUE AS TO AGENCY OR AUTHORITY The defendants are sued as principal and agent. The defendant Vandy's Transportation is the principal and the defendant Darrell Ekdahl is the agent. If you find against Darrell Ekdahl, then you must also find against Vandy's Transportation. However, if you find for Darrell Ekdahl, then you must also find for Vandy's Transportation.

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RESPECTFULLY SUBMITTED this 6th day of March, 2006. STRUCKMEYER AND WILSON

s/Garvey M. Biggers____________________ Garvey M. Biggers S. Lee White Attorneys for Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc.

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ORIGINAL of the foregoing DEFENDANTS' PROPOSED CIVIL JURY INSTRUCTIONS, NINTH CIRCUIT electronically submitted using the CM/ECF System for filing and transmittal of a Notice of Filing to the following CM/ECF registrants: Augustine B. Jimenez III AUGUSTINE B. JIMENEZ III, P.C. 3200 N. Central Ave., Suite 2550 Phoenix, AZ 85012 (Attorney for Plaintiffs) COPY (paper) of the foregoing mailed/hand-delivered (*) this 6th day of March, 2006 to: (*) The Honorable Paul G. Rosenblatt UNITED STATES DISTRICT COURT Sandra Day O'Connor US Courthouse 401 W. Washington St. Phoenix, AZ 85003

s/Garvey M. Biggers______________

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