Case 3:07-mc-00047 Document 5 Filed 05/14/2007 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
MISCELLANEOUS NO. 3:07-MC-47
(Doc. No. 5)
IN RE: )
)
STANDING ORDER GOVERNING )
JURY SELECTION AND )
INSTRUCTION IN CIVIL CASES )
BEFORE THE HONORABLE )
FRANK D. WHITNEY )
)
The terms of this Order shall apply to all pending and future civil cases on the docket of the
Honorable Frank D. Whitney in which a trial by jury has been demanded.
1. VOIR DIRE. Pursuant to Rule 47(a) of the Federal Rules of Civil Procedure, the Court will
conduct all jury voir dire according to the following procedures.
a. Prior to a scheduled trial term of Court, the Jury Coordinator will mail to each person
selected for jury service a “Confidential Juror Questionnaire,” a copy of which is
attached to this Order as Exhibit A. Counsel shall be provided copies of the
completed juror questionnaires prior to jury selection and voir dire. Counsel should
be aware that, because it is the Court’s custom to hold mixed criminal/civil trial
terms which draw on a common juror pool, some of the questions asked on the
Confidential Juror Questionnaire may not seem especially relevant to civil jury
selection.
b. After the prospective jurors are sworn, the Court will:
i. Explain to the jury panel the purpose of voir dire;
ii. Indicate to the jury panel how long the case is expected to take to try, and ask
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if any member of the jury panel has special circumstances (including personal
obligations and/or medical conditions) that would make serving as a juror
difficult;
iii. Read the joint statement of the case provided by counsel in advance of trial,
and ask if any member of the jury panel has previously heard or read anything
about the case;
iv. Have counsel introduce themselves and their clients, and ask if any member
of the panel has any relationship with any of them.
v. Have counsel identify all potential witnesses, and ask if any member of the
panel has any relationship with any of them.
vi. Ask any necessary follow-up questions that may arise from a juror’s answer
to any question (including written answers to questions on the Confidential
Juror Questionnaire);
vii. Ask any questions requested by counsel, as the Court may allow in its
discretion;
viii. Ask if any other reason suggests itself to any member of the jury panel as to
why he or she could not sit on this jury and render a fair and impartial verdict
based on the evidence presented in the context of the Court’s instructions on
the law.
2. JURY SELECTION.
a. Method. Jury selection will be conducted according to a modified “strike and
replace” method. This method generally works as follows: A number of jurors equal
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to the size of the trial jury are called into the box. Only the jurors seated in the box
initially are examined by the judge. Requests to excuse jurors for cause and hardship
are made, in writing on a form to be provided by the Court, and may be heard and
ruled upon in sidebar. Peremptory challenges are then indicated on a form to be
provided by the Court and are announced by the Judge. Failure to exercise a
peremptory challenge as to a juror during the round in which he/she is first seated in
the box will result in waiver of counsel’s right to challenge that juror during later
rounds. When a juror is removed for cause or hardship or is peremptorily removed
by one of the parties, another juror is called forward to replace the departing juror.
The replacement is then asked for his or her answers to all previous questions. This
process continues until all challenges for cause and peremptory challenges have been
exhausted and the required number of jurors remain. Counsel should note that jurors
will be called at random and counsel will not know the order in which jurors in the
pool will be called to fill vacant seats in the box.
b. Number of Peremptory Challenges. All plaintiff(s) collectively shall be entitled
to three (3) peremptory challenges. All defendant(s) collectively shall likewise be
entitled to three (3) peremptory challenges. The Court may allow additional
peremptory challenges (no more than three per party) in exceptional cases.
c. Number of Trial Jurors. Civil juries will consist of eight (8) jurors with no
alternates; however, no mistrial will result if a juror must be excused mid-trial so
long as at least six (6) jurors remain at the time a verdict is returned.
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3. JURY INSTRUCTIONS. Jury instruction will be conducted in four (4) phases. The
purpose of this methodology is to break up the monotony of a single final charge, instruct the
jury at points in time in which the Court’s directives will have the greatest efficacy, and
allow the jury to retire to deliberate with counsel’s summations fresh in mind.
a. Phase One. Phase one instructions will be given after the jury is empaneled and
before opening statements. Topics covered in phase one instructions include:
(i) juror conduct during trial; (ii) the province of the judge and jury; (iii) what is/is
not evidence; and (iv) assessment of witnesses. The Court’s phase one pattern
instructions are attached to this Order as Exhibit B. Ordinarily, these instructions
WILL NOT be repeated during the final jury charge but WILL be included in a set
of written jury instructions that will be sent back with the jury during deliberations.
b. Phase Two. Phase two instructions will be given during the course of trial as needed
to explain why certain evidence has been admitted or excluded. Issues arising during
trial that would warrant an instruction include: (i) if judicial notice of a fact is taken,
or a stipulation is read into the record, or an expert witness is qualified to testify
concerning matters of opinion, the Court will explain these procedures to the jury at
the appropriate time; (ii) if charts, summaries, or transcripts are used to aid the jury
but not admitted into evidence, an appropriate instruction concerning the use of the
aid will be given; and (iii) if evidence is admitted for a limited purpose (e.g., prior
bad acts, impeachment by prior inconsistent statement or criminal conviction), an
appropriate cautionary instruction will be given at that time. Ordinarily, these
instructions WILL NOT be repeated during the final jury charge and WILL NOT be
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included in a set of written jury instructions that will be sent back with the jury
during deliberations. Accordingly, if counsel believe that a cautionary or explanatory
instruction is needed at any time during trial, counsel shall immediately make himself
heard or any objection to the Court’s failure to instruct shall be deemed waived.
c. Phase Three. Phase three instructions will be given after the close of all evidence
but before closing arguments. Topics covered in phase three instructions include:
(i) the burden of proof; (ii) a reading of each jury interrogatory on the verdict form,
together with the elements of each claim or defense and relevant definitions of terms;
and (iii) damages. The Court’s phase three pattern instructions are attached to this
Order as Exhibit C, although the Court will be guided by the parties’ requests as this
phase of jury instructions is largely case-specific. These instructions WILL be
included in a set of written jury instructions that will be sent back with the jury
during deliberations.
d. Phase Four. Phase four instructions will be given after closing arguments and
before the jury retires to deliberate. The Court’s phase four pattern instructions are
attached to this Order as Exhibit D. These instructions WILL be included in a set of
written jury instructions that will be sent back with the jury during deliberations.
IT IS SO ORDERED.
Signed: May 14, 2007
5
Exhibit A
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Exhibit B
Members of the Jury:
Now that you have been sworn, I will give you some preliminary instructions to guide
you in your participation in this trial.
First, a few words about your conduct as jurors.
1. I instruct you that during the trial you are not to discuss the case with anyone or
permit anyone to discuss it with you. Until you all retire to the jury room at the
end of the case to deliberate on your verdict, you must not to talk about this case.
2. Do not read or listen to anything touching on this case in any way – that includes
newspaper articles or television or radio reports on this case. If anyone should try
to talk to you about it, bring it to my attention promptly.
3. Do not try to do any research or make any investigation about the case on your
own.
4. Finally, do not form any opinion until all the evidence is in. Keep an open mind
until you start your deliberations at the end of the case.
If you wish, you may take notes. If you do, remember that they serve merely as an aid to
your memory; they are not a substitute for your own memory or the memory of any other juror.
It is each juror’s individual responsibility to listen carefully to and remember the evidence.
Remember that your notes are not evidence, and your individual recollections must control your
deliberations. Those of you who take notes should leave them in the jury room when you leave
the courthouse each evening.
As members of the jury, you are the sole and exclusive judges of the facts. You
determine the credibility of the witnesses and resolve such conflicts as there may be in the
testimony. You draw whatever reasonable inferences you decide to draw from the facts as you
have determined them, and you determine the weight of the evidence. You are to perform the
duty of finding the facts without bias, prejudice, or sympathy to any party.
As judge, it is my responsibility to preside over the trial, decide what testimony and
evidence is admissible under the law for your consideration, and instruct you as to the legal
principles governing this case. It is your duty to accept my instructions of law and apply them to
the facts as you determine them. You should not single out any instruction as alone stating the
law, but must consider all of my instructions as a whole. You may not substitute or follow any
personal or private notion or opinion as to what the law is or ought to be. Nothing that I may say
or do during the course of the trial is intended to indicate, or should be taken by you as
indicating, what your verdict should be.
The evidence from which you will find the facts will consist of the testimony of
witnesses, documents and other things received into the record as exhibits, and any facts that the
lawyers agree to or stipulate to or that the court may instruct you to find. Certain things are not
evidence and must not be considered by you. I will list them for you now:
1. Statements, arguments, and questions by the lawyers or myself are not evidence.
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Exhibit B
It is the witnesses’ sworn testimony that is evidence. Thus, if a lawyer makes a
statement or propounds a question that assumes certain facts to be true, this must
not be taken as evidence unless a witness adopts or agrees to the assumed facts in
his answer.
2. Objections to questions are not evidence. Lawyers have an obligation to their
clients to make objections when they believe evidence being offered is improper
under the rules of evidence. You should not be influenced by the objection or by
the court’s ruling on it. If the objection is overruled, treat the answer like any
other. If the objection is sustained, ignore the question. Do not attempt to guess
what answer might have been given had I allowed the question to be answered.
3. Testimony that the court has excluded or told you to disregard is not evidence and
must not be considered. If you are instructed that some item of evidence is
received for a limited purpose only, you must follow that instruction.
4. Anything you may have seen or heard outside the courtroom is not evidence and
must be disregarded. You are to decide the case solely on the evidence presented
here in the courtroom.
There are two types of evidence which you may properly assess in determining whether a
party has met its burden of proof – direct evidence and circumstantial evidence. Direct evidence
is direct proof of a fact, such as the testimony of an eyewitness to something he knows by virtue
of his own senses. Circumstantial evidence is proof of a set of facts from which you may infer or
conclude, on the basis of your reason, experience, and common sense, that some other fact
exists. As a general rule, the law makes no distinction between direct and circumstantial
evidence, but simply requires that your verdict must be based on a preponderance of all the
evidence presented.
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 none of it, or
believe part and disbelieve part. In addition, the weight of the evidence is not necessarily
determined by the number of witnesses testifying to the existence or nonexistence of a fact. You
may find that the testimony of a smaller number of witnesses on one side is more credible than
the testimony of a greater number of witnesses on the other side.
In considering the testimony of any witness, you should use all the tests for truthfulness
that you would use in determining matters of importance to you in your daily life. You should
consider any bias or hostility the witness displays for or against any party as well as any interest
the witness has in the outcome of the case. You should consider the opportunity the witness has
to see, hear, and know the things about which he testifies, the accuracy of his memory, his
candor or lack of candor, his intelligence, the reasonableness and probability of his testimony
and its consistency or lack of consistency and its corroboration or lack of corroboration with
other credible testimony. Always remember that you should use your common sense, your good
judgment and your own life experience.
The trial will now begin. First, each side may make an opening statement. An opening
statement is neither evidence nor argument; it is an outline of what that party intends to prove,
offered to help you follow the evidence. Next, the plaintiff will present his [her] witnesses, and
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Exhibit B
the defendant may cross-examine them. Then the defendant will present his [her] witnesses, and
the plaintiff may cross-examine them. After the evidence is in, I will instruct you on the law,
and the attorneys will make their closing arguments to summarize and interpret the evidence for
you. You will then retire to deliberate on your verdict.
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Exhibit C
Members of the Jury:
Now that you have heard the evidence and soon will hear the arguments of counsel, I will
instruct you as to the law that applies in this case. If any difference appears to you between the
law as stated by the attorneys in closing arguments and that stated by me in these instructions,
you are to be governed by my instructions.
I remind you that it is your duty and your responsibility in this trial to judge the facts in
accordance with the law as I instruct you. You may find the facts only from the evidence which
I have allowed to be admitted during this trial. You must not consider anything which I have
instructed you to disregard, and evidence which I have admitted only for a limited purpose you
must consider only for that purpose.
[Insert any additional general instructions as may be necessary here.]
In a civil case, the party with the burden of proof on any given issue has the burden of
proving every disputed element of his claim or affirmative defense to you by a preponderance (or
the greater weight) of the evidence. To establish a fact by a preponderance (or the greater
weight) of the evidence means to prove that the fact is more likely true than not true. It refers to
the quality and persuasiveness of the evidence, not to the number of witnesses or documents. If
you conclude that the party bearing the burden of proof has failed to establish any essential part
of his (her) claim or affirmative defense by a preponderance of the evidence, you must decide
against him (her) on the issue you are considering.
Some of you may have heard of proof beyond a reasonable doubt, which is the proper
standard of proof in a criminal trial. That requirement does not apply to a civil case such as this
and you should put it out of your mind.
[Insert instructions specific to the claims and defenses at issue here. The following
italicized language is included as an example.]
*****
The first issue on the verdict form reads: “Do you find that the Defendant is liable to
the Plaintiff on account of violating the Racketeer Influenced and Corrupt Organizations
Act?”
To establish that the defendant has violated RICO, the plaintiff must prove each of the
following six elements by a preponderance of the evidence:
1. That an “enterprise” existed;
2. That the enterprise engaged in, or had some effect upon, interstate or foreign
commerce;
3. That the defendant was employed by or associated with the alleged enterprise;
4. That the defendant knowingly and willfully conducted or participated, directly or
indirectly, in the conduct of the affairs of the alleged enterprise;
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Exhibit C
5. That the defendant did so knowingly and willfully through a “pattern of
racketeering activity;” and
6. That the plaintiff was injured in its business as a proximate result of the
defendant’s commission of the pattern of racketeering activity.
The term “enterprise” includes any individual, sole proprietorship, partnership,
corporation, association or other legal entity, and any union or other group of individuals
associated in fact although not a legal entity, that is engaged in, or the activities of which affect,
interstate or foreign commerce.
The term “racketeering activity” includes, among other things, any act in violation of 18
U.S.C. § 1341 (relating to mail fraud) and 18 U.S.C. § 1343 (relating to wire fraud). Under
those laws it is a criminal offense for anyone, knowingly and with intent to deceive, to
participate in a scheme to defraud another out of money or property by making materially false
and fraudulent representations, and then to attempt to execute or carry out the fraudulent
scheme through use of the mails or interstate wire communication facilities. The failure to
disclose information may constitute a fraudulent representation if the defendant was under a
legal, professional or contractual duty to make such a disclosure, the defendant actually knew
such disclosure ought to be made, and the defendant failed to make such disclosure with the
intent to defraud.
Each separate use of the mails or wires in connection with a scheme to defraud is a
separate offense or what is commonly referred to in the RICO context as a “predicate act.” In
order to constitute a “pattern of racketeering activity” under RICO, you must find that the
defendant committed at least two such predicate acts within 10 years of each other.
To prove that the predicate acts constituted a “pattern of racketeering activity,” the
plaintiff must also prove that the two or more predicate acts are related to each other and that
they pose a threat of continued criminal activity. A series of disconnected crimes alone does not
constitute a pattern of racketeering activity, nor do they alone amount to, or pose a threat of,
continued racketeering activity. To prove that the acts of racketeering are related, the plaintiff
must prove that the acts had the same or similar purposes, results, participants, victims, or
methods of commission, or that they are otherwise interrelated by distinguishing characteristics
and are not isolated events. To prove that the racketeering acts pose a threat of continued
racketeering activity, the plaintiff must establish that (1) the acts are part of a long-term
association that exists for criminal purposes, (2) the acts are a regular way of conducting the
defendant’s ongoing business, or (3) the acts are a regular way of conducting or participating in
an ongoing RICO enterprise.
Finally, for the plaintiff to prevail under RICO, it must prove by a preponderance of the
evidence that the defendant’s RICO violations were the proximate cause of injury to the
plaintiff's business or property. Therefore you must find that the plaintiff justifiably relied, to its
detriment, on the conduct of the defendant giving rise to the violation of RICO; and that as a
direct consequence, the plaintiff suffered an injury to his business or property.
The second issue on the verdict form reads: “What amount of compensatory damages,
if any, is the Plaintiff entitled to recover from the Defendant?”
If the plaintiff has proven any of its claims against the defendant by a preponderance of
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Exhibit C
the evidence, you must determine the damages to which the plaintiff is entitled. You should not
interpret the fact that I have given instructions about the plaintiff's damages as an indication in
any way that I believe that the plaintiff should, or should not, win this case. It is your task first to
decide whether the defendant is liable on any of the plaintiff’s claims. I am instructing you on
damages only so that you will have guidance in the event you decide that the defendant is liable
and that the plaintiff is entitled to recover money from the defendant.
The purpose of the law of damages is to award, as far as possible, just and fair
compensation for the loss, if any, which resulted from the defendant’s wrongful conduct. If you
find that the defendant is liable on the claims, as I have explained them, then you must award the
plaintiff sufficient damages to compensate it for any injury proximately caused by the
defendant’s conduct. These are known as “compensatory damages.” Compensatory damages
seek to make the plaintiff whole – that is, to compensate it for the actual damage suffered. At a
minimum, you may award some nominal amount of damages to the plaintiff even in the absence
of proof of actual damages.
You may award compensatory damages only for injuries that a plaintiff proves were
proximately caused by a defendant’s allegedly wrongful conduct. The damages that you award
must be fair and reasonable, neither inadequate nor excessive. You should not award
compensatory damages for speculative injuries, but only for those injuries that a plaintiff has
actually suffered. In awarding compensatory damages, you must be guided by dispassionate
common sense. Computing damages may be difficult, but you must not let that difficulty lead you
to engage in arbitrary guesswork. On the other hand, the law does not require a plaintiff to
prove the amount of its losses with mathematical precision, but only with as much definiteness
and accuracy as the circumstances permit. You are to use sound discretion in fixing an award of
damages, drawing reasonable inferences where you deem appropriate from the facts and
circumstances in evidence.
*****
With these instructions in mind, you will now hear the closing arguments of counsel.
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Exhibit D
Now, members of the jury, you have heard the evidence and the arguments of counsel. It
is your duty to remember the evidence whether it has been called to your attention or not, and if your
recollection of the evidence differs from that of the attorneys, you are to rely solely upon your
recollection of the evidence in your deliberations.
It is your duty not only to consider all the evidence, but also to consider all the arguments,
the contentions and positions urged by the attorneys and any other contention that arises from the
evidence, and to weigh them all in the light of your common sense, and as best you can, to determine
the truth of this matter.
The law, as indeed it should, requires the presiding judge to be impartial. Therefore, do not
assume from anything I may have done or said during the trial that I have any opinion concerning
any of the issues in this case.
I instruct you that a verdict is not a verdict until all [eight] jurors agree unanimously as to
what your decision shall be. Each one of you must decide the case for yourself. However, you
should do so only after a consideration of the case with your fellow jurors, and you should not
hesitate to change an opinion when convinced that it is erroneous. Discuss and weigh your
respective opinions dispassionately, without regard to sympathy, without regard to prejudice or favor
for either party, and adopt that conclusion which in your good conscience appears to be in
accordance with the truth.
I suggest that as soon as you reach the jury room, before beginning deliberations, you select
one of your members to serve as foreperson. This individual has the same vote as the rest of the
jurors, but simply serves to preside over the discussions. Once you begin deliberating, if you need
to communicate with me, the foreperson should send a written message to me by ringing the buzzer
next to the door and handing your note to the Marshal. However, you are not to tell me how you
stand numerically as to your verdict – for instance, should you be split in your voting at any
particular time, you would not tell me the specific numbers of division in your note.
We use a verdict sheet. This is simply the written notice of the decision that you reach in
this case. As soon as you have reached a verdict as to the claims alleged in the pleadings, you will
return to the courtroom and your foreperson will, on request, hand the verdict sheet to the Clerk.
There are places on the verdict sheet for the foreperson to enter the verdict, sign it, and date it.
During the trial, several items were received into evidence as exhibits. You will not be
taking the exhibits into the jury room with you at the start. If, after you have begun your discussions
of the case, you think it would be helpful to have any of the exhibits with you in the jury room, have
the foreperson send me a note asking for them.
If you need a break during deliberations, you may do so in the jury room, or if you need a
break outside the jury room, a Marshal will escort you. But you must not deliberate during a break
unless all [eight] of you are together. If you are not together, then do not talk about the case until
all of you are all back together.
You may now take the case and see how you find.
