How can you not be impressed with jury instructions?  They take decades worth of law and distill it down to simple statements that jurors can understand.  Or at least that’s the idea. 

But first you have to persuade the court to give the correct instructions.  Last week, the appellate court decided Harris v. City of Santa Monica (pdf), which involved a claim of instructional error.  The employer, a municipal bus company accused of firing a driver because she was pregnant, wanted BAJI No. 12.26, a mixed motive instruction that includes the statement:

If you find that the employer’s action, which is the subject of the plaintiff’s claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.

Fifty-four words, seven or so clauses, all in one sentence — what could be clearer? 

But the court declined to give that instruction.  As any California trial lawyer knows, the CACI instructions (pdf) were intended to replace BAJI.  And this trial court decided to rely instead on CACI 2500, which generally explains disparate treatment discrimination, including the requirement  "[t]hat plaintiff’s [protected category (here pregnancy)] was a motivating reason for the discharge."

While the two instructions overlapped, "the overlap was incomplete . . . because the instructions as given did not provide the city with a complete defense if the jury found the city would have terminated Harris anyway for performance reasons even if she had not been pregnant."  So even if there was no CACI instruction on mixed motives, the appellate court ruled that the the employer was entitled to an instruction informing the jury that the employer could not be liable if it would have fired plaintiff regardless of whether she was pregnant.  As a result, a $178,000 verdict for plaintiff and an award of $400,000 in attorneys’ fees were set aside and a new trial ordered. 

Pay attention to those instructions!