Free Jury Instructions - District Court of Arizona - Arizona

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Case 2:02-cv-02281-SMM Document 197 Filed 09/09/2005 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Brett D. LEAVEY,

) ) Plaintiff, ) ) v. ) ) UNUM/PROVIDENT CORP., et al., ) ) Defendants. ) _________________________________ )

No. CV-02-2281-PHX-SMM PRELIMINARY JURY INSTRUCTIONS

The Court will give the following preliminary jury instructions to assist the jury in this case.

DATED this 9th day of September, 2005.

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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. *** To help you follow the evidence, I will give you a brief summary of the positions of the parties: The plaintiff, Brett Leavey, had a disability insurance policy with defendant Provident Life and Accident Insurance Company. If Leavey became "totally disabled," as defined by the policy, then Provident Life would pay him a monthly benefit. Leavey filed a claim for benefits in November of 1998. Provident Life accepted the claim and started paying him benefits. Leavey contends that thereafter Provident Life handled his claim in bad faith. The defendants disagree. *** All parties are equal before the law and a corporation is entitled to the same fair and conscientious consideration by you as any party. *** 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. *** 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; -2Case 2:02-cv-02281-SMM Document 197 Filed 09/09/2005 Page 2 of 6

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(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. *** 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. *** 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. *** 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. ***

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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's memory; (3) the witness's manner while testifying; (4) the witness's interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness's testimony; (6) the reasonableness of the witness's 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. *** 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 clerk to give to me; and

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Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. *** 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. *** 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 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. *** 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 defendants may cross-examine. Then the defendants may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, 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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Burden of proof means burden of persuasion. On any claim, the party who has the burden of proof must persuade you, by the evidence, that the claim is more probably true than not true. This means that the evidence that favors that party outweighs the opposing evidence. In determining whether a party has met this burden, consider all the evidence that bears on that claim, regardless of which party produced it. *** Some of the claims in this case require proof by clear and convincing evidence. A party who has the burden of proof by clear and convincing evidence must persuade you by the evidence that the claim is highly probable. This standard is more exacting than the standard of more probably true than not true, but it is less exacting than the standard of proof beyond a reasonable doubt. You are to use the standard of more probably true than not true for all claims in this case except for those on which you are specifically instructed that the burden of proof is the standard of clear and convincing evidence. In determining whether a party has met any burden of proof, you will consider all the evidence, whether presented by plaintiff or defendants. *** While it is not customary for a juror to ask a question of a witness, if you wish to do so, put the question in writing and hand it to the clerk. The court and counsel will review your question. Do not be concerned if the question is not asked. Do not discuss your question with anyone, including the clerk. Remember that you are not to discuss the case with other jurors until it is submitted for your decision.

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