WPI 0.10 Introduction to Washington's Pattern Jury Instructions for Civil Cases

This introduction provides background information about Washington's civil pattern jury instructions and how they are best used.

Overview of material. Washington's pattern jury instructions for civil cases are found in Volumes 6 and 6A of the Washington Practice series of books. They are also available through Westlaw (www.westlaw.com) and via a free-access public website (http://government.westlaw.com/linkedslice/default.asp?SP=WCCJI-1000). Accompanying each instruction is a Note on Use, which describes the instruction's scope and applicability, and a Comment, which summarizes the underlying law. Comments are not intended to alert readers to all issues for the particular area of law, only instruction-related issues.

The chapters in Part I cover instructions of broad applicability, including introductory instructions, instructions about the evaluation of evidence, and a variety of oral instructions. Parts II through VII focus on issues that are frequently included in civil jury trials: Part II addresses negligence and proximate cause; Part III includes instruction on the issues in the case and the burden of proof; Part IV focuses on damages; Part V addresses multiple parties/pleadings and verdict forms; Part VI covers agency and partnership; and Part VII contains instructions for statutory violations. The remaining Parts are devoted to instructions that are specific to various common causes of action.

Several appendices provide additional information for practitioners. For example:

Several of the chapters begin with an introduction that covers some of the more general points of law underlying the instructions. Readers interested in a particular instruction should carefully review the instruction's entire chapter, including any introductory material.

Nature of pattern instructions. The pattern instructions are not authoritative primary sources of the law; rather, they restate otherwise existing law for jurors. The pattern instructions do not receive advance approval from any court, although they are often treated as “persuasive.” See, e.g., State v. Mills, 116 Wn.App. 106, 64 P.3d 1253 (2003), reversed on other grounds, 154 Wn.2d 1, 109 P.3d 415 (2005). Judicial review of the instructions instead occurs after the fact, when individual instructions are addressed in appellate opinions. The pattern instructions are not binding on trial courts; they are intended to guide trial courts in drafting appropriate instructions for individual cases.

Use of pattern jury instructions—In general. The Washington Pattern Instructions (WPI) Committee writes pattern jury instructions to assist the trial judge and the attorneys in preparing clear, accurate, and balanced jury instructions for individual civil cases. Pattern instructions are examples that apply to a general category of cases, rather than an exact blueprint for use in every individual case. They provide a neutral starting point—not an ending point—for the preparation of instructions that are individually tailored for a particular case. Trial judges and attorneys must consider whether modifications are needed to fit the individual case.

Sometimes, this process can involve adding new language for points not addressed in the pattern instructions; it can mean omitting language that does not apply to an individual case; it can involve substituting more specific language for the necessarily general language of a pattern instruction; it can involve combining or reorganizing instructions that address related points. The goal, always, is to finish with a set of instructions that clearly and accurately state the law that applies to the particular case, no more and no less.

Plain language. Jury instructions need to express legal concepts in plain language for lay jurors. When feasible, the committee translates complicated legal jargon into a series of simple, declarative, easy-to-understand sentences, while being careful to retain legal accuracy. For this reason, the pattern instructions do not always precisely follow the language of the governing statute or judicial opinion, as these are not written with the lay juror in mind. See Bell v. State, 147 Wn.2d 166, 177, 52 P.3d 503 (2002) (an instruction that uses statutory language is “appropriate only if the statute is applicable, reasonably clear, and not misleading”); Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 267, 96 P.3d 386 (2004) (quoting Bell); Swope v. Sundgren, 73 Wn.2d 747, 750, 440 P.2d 494 (1968) (the language used by the Washington Supreme Court “is not ordinarily designed or intended as a model for jury instructions”); Turner v. City of Tacoma, 72 Wn.2d 1029, 1034, 435 P.2d 927 (1967) (“That [a court] may have used certain language in an opinion does not mean that it can be properly incorporated into a jury instruction.”).

The WPI Committee urges trial judges and attorneys to use plain language when preparing jury instructions. For a good discussion of plain-language drafting principles, see Professor Peter Tiersma's article, Communicating with Juries: How to Draft More Understandable Jury Instructions, National Center for State Courts, Williamsburg, VA, 2006 (also available from the website for the National Center for State Courts, www.ncsconline.org). Many other resources are also available.

Evolution of pattern instructions—Earlier versions not necessarily erroneous. The WPI Committee regularly updates the pattern instructions. Changes to an instruction do not necessarily mean that earlier versions of the instruction were erroneous. Sometimes the WPI Committee updates an instruction to incorporate a change in law; more often, updated language merely reflects an intent to improve the wording of what was already an accurate statement of the law.

This latter point has been stated by the Washington Supreme Court: “Mere ‘[c]larification of [a pattern jury] instruction does not amount to an indictment of earlier versions.” In re Caldellis, 187 Wn.2d 127, 139, 385 P.3d 135, 142 (2016), quoting State v. Holzknecht, 157 Wn.App. 754, 765, 238 P.3d 1233, 1239 (2010). The Holzknecht court expressly disagreed with a contrary analysis from State v. Hayward, 152 Wn.App. 632, 217 P.3d 354 (2009). In Hayward, another division of the Court of Appeals had concluded, in part, that a former pattern instruction was erroneous because the WPI Committee had later revised it to more closely follow statutory language. State v. Hayward, 152 Wn.2d at 644–46 (“The revision to WPIC 10.03 … shows that the previous version of WPIC 10.03 did not adequately follow [the governing statute]”). In light of the decision in Caldellis, Hayward is no longer authoritative.

To assist in this regard, the WPI Committee will strive to explain instructional changes in the accompanying Comments. For example, when an instruction has undergone extensive revision for purposes of plain language improvements, the WPI Committee intends to indicate that the changes were made to improve juror understanding rather than to substantively change the statement of the applicable law. The absence of such a statement, however, should not be interpreted as implying a contrary intent.

Bracketed language. Many of the pattern instructions include bracketed language. The brackets signify that the enclosed language may or may not be appropriate for a particular case.

Often, bracketed language appears in pairs, with a choice being presented as to which of the bracketed alternatives applies to the particular case. Sometimes a pattern instruction includes a series of bracketed terms, and one or more of the terms could be applicable. The judge and attorneys should carefully consider which terms should be included. Inclusion of terms that do not apply to the facts of a case could confuse the jury or inadvertently insert unintended issues into the case.

In any event, the brackets are not meant to be included in the final jury instructions; they are inserted to alert the judge and attorneys that a choice in language needs to be made.

In many instructions, the brackets involve selecting between the pronouns “he” or “she.” If another pronoun is preferred, the court should make an appropriate substitution.

Blank lines. Pattern instructions occasionally include blank lines. Most of the blank lines are intended to be filled in by the judge, so that the final jury instruction would use the judge's inserted language instead of the blank line. These blank lines are designated with parenthetical information that appears above the blank line, as in: “(describe conduct or activity).” Practitioners should make sure that the inserted information does not amount to a judicial comment on the evidence.

Other blank lines are intended to be left in the final jury instructions, to be filled in by the jury. These blank lines are usually designated with parenthetical information that appears below or next to the blank line, as in: “ANSWER: (Write ‘yes’ or ‘no’).” The context should make clear which blank lines are to be filled in by the jury and which by the judge.

Effective dates. A notation appears at the end of each Comment indicating the instruction's “current as of” date. These dates remind users as to the need to research any changes in law that may have occurred since the date when the WPI Committee last considered the instruction.

State and local rules. State and local rules address instruction-related issues, such as the number of copies of proposed instructions the attorney must submit, particular formatting requirements, and the like. State rules are cited throughout the chapters and appendices. Local rules, however, are beyond the scope of the Comments and appendices for these volumes. Attorneys should carefully consider local rules when preparing their proposed instructions.

Feedback requested. The WPI Committee is always interested in receiving feedback as to these instructions. Suggestions for improvements may be sent to the WPI Committee at [email protected].