Free Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. __-cv-____- JLK _______________, Plaintiff, vs. _______________, Defendant. __________________________________________________________________ STANDARD JURY INSTRUCTIONS __________________________________________________________________

The following standard jury instructions are to be used as appropriate in jury trials before the Honorable John L. Kane. Please disregard the number of the instructions and note that multiple sample instructions are provided on some subjects.

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INDEX

Section 1.0

General Instructions (Sample 1) Description of the Case (Sample 2) Description of the Case Equality of the Parties Status of a Corporation Knowledge of a Corporation Scope of Authority­ Defined Apparent Authority­ Definition and Effect Evidence - General Evidence - Direct and Circumstantial Filing of a Lawsuit or Pleading Credibility of Witnesses Single Witness Burden of Proof Juror Conduct

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Instruction No. 1.1

Instruction No. __ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Section 2.0

Instructions For Use During Trial Consideration of Deposition Testimony Opinion Evidence and Expert Witnesses Charts, Summaries and Graphic Material Testimony Provided Through Interpreter
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Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___

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Section 3.0

Substantive Instructions Cause­ Defined Cause and Concurrent Causes Comparative Fault Damages - Introduction Damages­ Actual or Nominal Determination of Damages Exemplary Damages Willful and Wanton Conduct­ Defined

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Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Section 4.0 Final Instructions

44 Jury Deliberations - Reaching a Verdict Jury - Evidence Excluded Multiple Recovery Prohibited Jury - Deliberations Communications with Judge (Sample 1) Unanimous Agreement and Jury Verdict Form (Sample 2) Jury Verdict Forms­ Instruction 55

Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___ Instruction No. ___

Section 5.0

Jury Verdict Form

Jury Verdict Form (two samples)

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Section 1.0 General Instructions

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INSTRUCTION NO. 1.1 (Sample 1) Description of the Case In order to help you understand this case, I will give you a brief summary of the claims and defenses. Isabel Ceja is the party who brings this lawsuit. She has sued two related corporations, Michael Weinig, AG and Michael Weinig, Inc. For convenience, in this case we will call them " Weinig"or " Michael Weinig." Ms. Ceja seeks recovery for the damages that she claims resulted when her left hand was injured while operating a Weinig Unimat 22AL wood moulding machine. As a result of the injury, her hand was amputated. The machine was manufactured by Michael Weinig for sale in the United States and was sold to Ms. Ceja' employer, Pillow s Kingdom. Ms. Ceja claims the machine was sold to her employer for use in the continuous, high-speed production of furniture parts. She says the machine was defective because it lacked lock-out mechanisms, interlocks and brakes to prevent operator contact with its rotating blades and spindles. Weinig admits it manufactured the machine, but denies it was defective. In addition, Weinig raises the following defenses: First, that Ms. Ceja' injuries were s caused in whole or in part by the fault of Isabel Ceja; and, second, that Ms. Ceja' s injuries and damages were caused in whole or in part by the fault of her employer, Pillow Kingdom and the predecessor of Pillow Kingdom, Visco Manufacturing Company.

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Finally, the parties to this lawsuit have agreed to certain facts. You must treat these agreed upon, or stipulated facts as having been proved. The facts on which both sides have agreed are as follows: 1. Michael Weinig, AG is a company organized and existing by virtue of the laws of Germany with a principal place of business in Tauberbischofsheim, Germany. Michael Weinig, AG is a manufacturer of specialty woodworking machines. Defendant, Michael Weinig, Inc. is a corporation organized and existing under the laws of the state of North Carolina, with its principal place of business in Statesville, North Carolina. Michael Weinig, Inc. is wholly owned by Michael Weining, AG. Michael Weinig, Inc. sells and services specialty woodworking machines manufactured by Michael Weinig, AG. For all relevant purposes in this action, Michael Weinig AG and Michael Weinig, Inc. are the same entity and will be referred to together in these proceedings as " Michael Weinig"or " Weinig." Visco Manufacturing Company was a California corporation. Visco Manufacturing has merged with Ms. Ceja' employer, Pillow Kingdom. s For relevant purposes in this action, Visco Manufacturing Company and Pillow Kingdom are the same entity, and will be referred to together in these proceedings as " Visco"or " Pillow Kingdom." The Weinig Unimat 22AL wood moulding machine is a heavy duty automatic moulder with a feed through system of high-speed production of wooden mouldings. The purchase price of the Weinig Unimat 22AL wood moulding machine was $92,100. At all times relevant, Michael Weinig was a " manufacturer"as defined by Colorado statute. On February 23, 1998, while operating the Weinig Unimat 22 AL wood moulding machine in the course and scope of her employment, Ms. Ceja' s hand came into contact with one or more of the machine' spindles, causing s injury.
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9. 10.

As a result of the injury, Ms. Ceja' left hand was amputated. s Ms. Ceja returned to the employment of Pillow Kingdom on February 15, 1999. Ms. Ceja lost wages totaling $16,872.06 between February 23, 1998 and February 15, 1999 as a result of her injuries. The reasonable and necessary expenses for the medical care and treatment provided to Ms. Ceja between February 23, 1998 and February 12, 2001 was $83,865.29. The Occupational Safety and Health Administration, or " OSHA," investigated the facts and circumstances surrounding Ms. Ceja' injuries. s OSHA is authorized to inspect and investigate places of employment, require corrective or remedial action by an employer, and issue citations to an employer. But, OSHA is not authorized to require corrective or remedial actions by, or issue citations to, the manufacturers or sellers of machines used at particular places of employment. The fact that there was an OSHA investigation and the outcome of that investigation does not mean that Pillow Kingdom, Michael Weinig or Isabel Ceja is or is not at fault in this action.

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INSTRUCTION NO. 1.1 (Sample 2) Description of the Case In order to help you follow the evidence, I will now give you a brief summary of the claims and defenses. The parties that bring a lawsuit are called the plaintiffs. In this action, the plaintiffs are United International Holdings, Inc., who I will refer to as UIH, and UIH Asia Investment Co., who I will refer to as UIH Asia. UIH Asia was a general partnership and UIH was its managing general partner. The parties against whom the lawsuit is brought are called the defendants. In this action, the defendants are The Wharf (Holdings) Limited, which I will call Wharf Holdings; Wharf Communications Investments Limited, which I will call Wharf Communications; Wharf Cable Limited, which I will call Wharf Cable; and Stephen Ng, who is and has been a senior officer and director of Wharf Holdings, Wharf Communications, and Wharf Cable. For purposes of this instruction, I will refer to the Wharf entities as "Wharf" and Stephen Ng as "Ng." This is a case for fraud, breach of fiduciary duty, breach of promise, and other claims against Wharf and Ng. UIH contends that all of its claims against Wharf and Ng arise out of a pattern of deceit by Wharf and Ng, the goal of which was to induce UIH to provide its knowledge, expertise, reputation, and services in a combined venture with Wharf Holdings and Wharf Communications to obtain the license for, develop and implement the Hong Kong cable
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television franchise. This franchise, which was the object of the venture, is potentially one of the largest cable television systems in the world. On June 1, 1993, the venture was successful in obtaining the franchise for Wharf Cable, and on October 31, 1993, the Hong Kong cable television system went "on the air." UIH contends that, beginning in the late spring of 1992, Wharf and Ng represented, promised, and ultimately contracted with UIH that in exchange for UIH's continuing commitment to the venture, UIH was entitled to acquire a 10% ownership interest in the project. At the time Wharf and Ng made these representations and promises to UIH, they had no intention of fulfilling them. Further, Wharf and Ng failed to tell UIH about hidden conditions that Wharf and Ng now claim had to be fulfilled before UIH could invest. Only after UIH attempted to exercise its right to invest, in the summer of 1993, did Wharf and Ng claim that the right to invest was subject to unfulfilled conditions. From then until March of 1994, Wharf refused to let UIH exercise its right to invest. Finally, in March 1994, Wharf and Ng categorically denied UIH's right. In reliance on the representations of Wharf and Ng concerning UIH's right to invest, and without knowledge of Wharf's undisclosed facts and conditions, for approximately a year, UIH provided substantial services to the cable TV venture, and lent its name, reputation and credibility to the venture. All of this was critical to the success of the venture.

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If UIH had known of the intention of Wharf and Ng not to allow UIH to invest in the project, or if they had known of any of the conditions that Wharf or Ng later asserted, UIH would not have made its massive commitment of knowledge, expertise, reputation or services to the venture. After the venture was successful in obtaining the cable T.V. license for Wharf Cable, defendants repudiated the rights of UIH in the project and took for themselves the entire value of the venture, including the 10% ownership interest in the project which was promised to UIH. UIH contends that the value of that 10% interest should be restored to them in this case. Among other things, UIH's claims are that Wharf's and Ng's promises and representations constituted fraud and deceit, a breach of contract and a breach of a fiduciary duty owed to them by Wharf. This fiduciary duty was a duty to act with the utmost good faith and loyalty, as well as a duty of full, fair, open and honest disclosure. The defendants Wharf and Ng sharply dispute UIH and UIH Asia' claims and s allegations. Defendants contend there was never any contract to give UIH or UIH Asia a 10% interest in the Hong Kong cable television project. Nor did defendants deceive or defraud UIH or UIH Asia in any way about their role in that project. Defendants also deny they ever took any actions creating a fiduciary duty to UIH or UIH Asia. Defendants maintain that, throughout their negotiations with UIH and UIH Asia over their possible participation in the Hong Kong cable television project, defendants made clear that UIH and UIH Asia could only obtain an interest in the project if several important conditions were met. These conditions were not hidden from UIH or UIH
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Asia. They were openly discussed and are spelled out in documents prepared by UIH and UIH Asia and their own lawyers. The conditions included: 1. 2. That the parties had to agree on and sign a written contract; That the written contract had to spell out all of the terms and conditions

under which any party would have a right to invest in the Hong Kong project; 3. That the written contract had to include not just UIH and Wharf, but also a

large telecommunications company; and 4. That the written contract had to receive the approval of the Boards of

Directors of each of the three companies. The defendants claim that a formal written contract among the three parties was crucial because the Hong Kong project was large and complicated, including a multimillion dollar investment in both cable television and telecommunications facilities. According to defendants, UIH and UIH Asia knew all along the telecommunication partner was intended to be NYNEX, which operates telecommunication networks in the United States, Europe and the Far East. When NYNEX eventually decided not to participate in the Hong Kong project, defendants assert UIH and UIH Asia were told the defendants were not interested in an investment agreement limited to UIH or UIH Asia. Consequently, defendants maintain they never finalized or approved any contract for UIH or UIH Asia to acquire a 10% interest in the Hong Kong project in return for their knowledge, expertise, reputation and services. Moreover, while draft contracts were exchanged, no contract giving UIH a 10% interest in the cable TV and
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telecommunications project was ever signed. Nor did defendants ever promise or represent that UIH or UIH Asia would be given such an interest. To the contrary, defendants contend that the only contract they ever signed with UIH was a Technical Cooperation Agreement and it specifically stated that UIH would have no ownership interest in the cable television project. Instead, the Technical Cooperation Agreement provided UIH would be paid in quarterly cash payments for the services it supplied to Wharf. The Technical Cooperation Agreement also stated that any later agreements had to be in writing. Thus, defendants contend that the only contract ever entered with UIH specifically denied UIH the right to a 10% interest. Keep in mind there are two different plaintiffs and four different defendants. In effect this means there are eight separate cases being tried. You must give each case separate and distinct consideration.

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INSTRUCTION 1.1 Description of the Case (Sample 3)

This case involves a business dispute between two companies, one of which claims the other filed a lawsuit against it for the purpose of interfering with its ability to sell its business to another entity that wanted to buy it. The claim at issue is called " tortious interference with prospective business relations"and it is being asserted by plaintiff, The Personnel Department, Inc. (" PDI" against two defendants, Professional ), Staff Leasing Corporation (" ProLease" and ProLease' President, Mr. Bala ) s Ramamoorthy. Your job as jurors will be to decide whether ProLease and Ramamoorthy should be held liable on PDI' claim for tortious interference against them. s Both PDI and ProLease are professional employer organizations, providing payroll, tax, risk management, government compliance, human resources services, and employee benefit services to other businesses. In January 1999, PDI and ProLease entered into negotiations for the sale of PDI' business to ProLease, and signed a Letter s of Intent. PDI terminated the negotiations one month later. In response to PDI' s termination, ProLease threatened and then filed suit against PDI in Maryland federal court, claiming the Letter of Intent was a binding agreement for the sale of the business and seeking an order compelling PDI to sell its assets to ProLease in accordance with it. PDI answered the lawsuit by denying ProLease' claim had any merit, and went s forward with plans to seek another buyer. While ProLease' lawsuit against PDI was s
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pending, PDI entered into negotiations with Denver-based Global Employment Solutions, Inc. (" Global" for the sale of PDI to Global. Global and PDI signed a Letter of Intent in ) June 1999. In August 1999, Global terminated its negotiations with PDI. Believing the reason for the termination was ProLease' lawsuit against it, PDI filed a counterclaim s against ProLease and Ramamoorthy in the Maryland court, asserting both that the lawsuit constituted an abuse of process and that it was filed and pursued for the purpose of improperly interfering with PDI' efforts to sell its business elsewhere. s The Maryland court ultimately rejected ProLease' claim against PDI that the s Letter of Intent was a binding contract, but also dismissed a counterclaim of PDI against ProLease for abuse of process. The court left intact PDI' counterclaim against ProLease s for tortious interference with prospective business relations and, at PDI' request, s transferred the case to Colorado. Once here, PDI amended its counterclaim to add Ramamoorthy as a defendant with ProLease. The case, with its one remaining claim, asserted against ProLease and Ramamoorthy, is now before you for trial. For purposes of trial, the parties have agreed to certain facts. You must treat these agreed upon (also known as " stipulated" facts as having been proved. The stipulated ) facts do not, of course, represent all of the facts on which you may base your decision. During the course of trial each side will attempt to persuade you that certain other facts do or do not exist. The facts on which both sides have agreed are as follows: 1. The Personnel Department, Inc. (" PDI" is a corporation organized under )

the laws of the State of Indiana, with its principal place of business located in Colorado
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Springs, Colorado. In 1999, PDI had offices and operations located in Colorado Springs and Indianapolis, Indiana. 2. Barry Farah is the President and Chief Executive Officer of PDI, and was

so at the time of the events at issue in this proceeding. 3. Professional Staff Leasing Corporation (" ProLease" is a corporation )

organized under the laws of the State of Maryland, with its principal place of business in Rockville, Maryland. 4. Bala Ramamoorthy was the President and Chief Executive Officer of

ProLease at the time of the events at issue in this proceeding. 5. PDI and ProLease are Professional Employer Organizations (" PEOs" ),

which provide payroll, tax, risk management, government compliance, human resources services and employee benefit services to other businesses. 6. PDI and ProLease began negotiations for a possible purchase of the assets

of PDI by ProLease in January 1999. Mr. Farah and Wanda Silva represented PDI; Mr. Ramamoorthy and Sam Kostick represented ProLease. 7. The companies prepared, exchanged, and revised several drafts of a

possible letter of intent for the proposed purchase of assets of PDI. 8. The parties agreed upon and signed a Letter of Intent in late January, 1999.

Farah signed the document for PDI on January 21, 1999. Ramamoorthy signed the document for ProLease on January 22, 1999.

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9.

The parties thereafter negotiated drafts of a purchase contract. In these

negotiations, ProLease was represented by Stanley Goldschmidt, an attorney from Maryland; PDI was represented by Ronald Lehmann, an attorney from Colorado Springs. 10. 11. On February 18, 1999, PDI terminated the negotiations to sell to ProLease. On March 24, 1999, ProLease filed a lawsuit in the United States District

Court for the District of Maryland, seeking an order compelling PDI to complete the sale in accordance with the parties'Letter of Intent. 12. The lawsuit was drafted and prepared for filing by Stanley Goldschmidt,

attorney for ProLease. 13. The lawsuit was reviewed and approved for filing on behalf of ProLease by

Mr. Ramamoorthy. 14. On April 27, 1999, PDI filed its Answer to the ProLease Complaint,

denying any liability to ProLease. 15. In June 1999, PDI entered into negotiations with Global Employment

Solutions, Inc. (" Global" for Global to buy PDI. They signed a written letter of intent, ), and in July and August 1999, PDI and Global exchanged drafts of a formal purchase contract. 16. 17. On August 16, 1999, Global terminated its negotiations with PDI. On August 18, 1999, PDI requested that ProLease withdraw the Maryland

lawsuit. ProLease and Ramamoorthy refused to withdraw the lawsuit against PDI.

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18.

On September 24, 1999, PDI filed two Counterclaims against ProLease and

Ramamoorthy, one for Tortious Interference with Prospective Economic Relations and the other for Abuse of Process. 19. On October 12, 1999, ProLease filed a Motion to Dismiss PDI' s

counterclaims in their entirety. 20. In January of 2000, PDI entered into negotiations to sell part of its business,

the Indiana operations, to The Church Extension of the Church of God, Inc. (" Church the Extension" located in Indiana. ), 21. PDI and the Church Extension entered into a formal purchase contract on or

about February 28, 2000, for the sale of the Indianapolis operation.

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INSTRUCTION NO. __ EQUALITY OF PARTIES (if appropriate) All persons are equal before the law regardless of race, national origin, citizenship, or even whether the party is a corporation. I tell you that all parties are equal before the law to remind you that you must base any decision in this case on the law and facts, not outside factors such as race, national origin, citizenship, or corporate status.

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INSTRUCTION NO. __ MULTIPLE DEFENDANTS (if appropriate) Although there are two defendants in this action, it does not follow from that fact alone that if one defendant is liable, then both defendants are liable. Each defendant is entitled to a fair consideration of the evidence. Neither defendant is to be prejudiced should you find against the other. Unless otherwise stated, all instructions I give you govern the case as to each defendant. At the conclusion of all of the evidence, you will be asked to consider and reach separate verdicts for both Defendants __ and __.

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INSTRUCTION NO. __ Status of a Corporation (if appropriate) All persons are equal before the law. A corporation is considered by the law to be a person. Corporations are entitled to the same fair and conscientious consideration by you as any physical person. Corporations can act only through their officers and employees. Any act or omission of an officer or employee while acting within the scope of his or her employment or authority is the act or omission of the corporation.

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INSTRUCTION NO. ___ KNOWLEDGE OF A CORPORATION (if appropriate) Knowledge of, or notice to, a corporation's director, officer, or employee received while he or she is acting within the scope of his or her authority, is the knowledge of, or notice to, the corporation.

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INSTRUCTION NO. __ SCOPE OF AUTHORITY--DEFINED (if appropriate) A director, officer, or employee is acting within the scope of his or her authority when he or she is doing the work assigned by his or her employer, or is doing that which is proper, usual, and necessary to accomplish the assigned work, or is doing that which is customary in the particular trade or business to accomplish the assigned work.

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INSTRUCTION NO. ___ APPARENT AUTHORITY--DEFINITION AND EFFECT (if appropriate) When a representative of a corporation, by words or conduct, has caused another person reasonably to believe that a director, officer, or employee has authority to take certain action on the corporation's behalf, although no such authority has in fact been given, the director, officer, or employee has apparent authority and may bind the corporation just as if the corporation had authorized such action.

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INSTRUCTION NO. 1.3 Evidence -- General It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law I give you. That is how you will reach your verdict. In doing so, you must follow the law whether you agree with it or not. At no time during the trial will I suggest what I think your verdict should be nor do I want you to guess or speculate about my views of what verdict you should render. You will decide what the facts are from the evidence that the parties will present to you during the trial. That evidence will consist of the sworn testimony of witnesses on both direct and cross-examination, regardless of who called the witness; documents and other things received into evidence as exhibits; and any facts on which the lawyers agree or which I may instruct you to accept as true. 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 by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you

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remember them differ from the way the lawyers have stated them, your memory of the facts controls. 2. Questions and objections by the lawyers are not evidence. Lawyers have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it. 3. Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. 4. Anything you may see or hear when the Court is not in session is not evidence, even if what you see or hear is done or said by one of the parties or by one of the witnesses. You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts that you find have been proved, such reasonable inferences as seem justified in the light of your experience. Inferences are inductions or conclusions your reason and common sense lead you to draw from the facts established by the evidence in the case.

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INSTRUCTION NO. 1.4 Evidence -- Direct and Circumstantial Evidence can be either direct or circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence; that is, it is proof of one or more facts from which one can find that another fact exists or is true. You should consider both kinds of evidence in deciding this case. It is for you to decide how much weight to give to any evidence, direct or circumstantial. The rules of evidence control the facts you may consider. When one lawyer asks a question or offers an exhibit and an opposing lawyer thinks that it is not permitted by the rules of evidence, the opposing 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 such 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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INSTRUCTION NO. 1.5 Filing of Lawsuit and Pleadings The fact that a plaintiff files a lawsuit is not evidence that the other party did anything wrong. The fact that a plaintiff complains that she has been damaged is not evidence that she has been damaged or that the other party violated the law. Similarly, the fact that a defendant denies that plaintiff has been damaged or that the law does not provide relief for her is not evidence that plaintiff has not been damaged or that the defendant did not violate the law. Both the complaint and the denial are merely the formal way in which the case is brought to court for you to decide. The traditional expression, " where there' smoke there' fire"is not always true and it cannot have any s s part in your reaching a decision in this case.

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INSTRUCTION NO. 1.6 Credibilitv of Witnesses In deciding the facts of this case, you will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says, only part of it, or none of it. In considering the testimony of any witness, you may consider: 1. The witness's opportunity and ability to see or hear or know the

things to which the witness testified; 2. 3. 4. The quality of the witness's memory; The witness's manner while taking the oath and while testifying; Whether the witness had an interest in the outcome of the case or

any motive, bias or prejudice; 5. Whether the witness's testimony is contradicted by anything the

witness said or did at another time, by the testimony of other witnesses, or by other evidence; 6. evidence; and, 7. Any other facts that bear on believability. How reasonable the witness's testimony was in light of all the

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify to that fact.

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If you believe a witness has willfully lied regarding any material fact, you have the right to disregard all or any part of that witness's testimony.

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INSTRUCTION NO. 1.7 Single Witness The testimony of a single witness that produces in your minds belief in the likelihood of truth is sufficient for the proof of any fact, and would justify a verdict in accordance with such testimony, even though a number of witnesses may have testified to the contrary, if, after consideration of all the evidence in the case, you hold greater belief in the accuracy and reliability of the one witness.

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INSTRUCTION NO. 1.8 Burden of Proof (Sample 1) This is a civil case. Therefore, [Plaintiff] has the burden of proving her claims by what is called a preponderance of the evidence. That means that no matter who produces the evidence, when you consider each of [Plaintiff' claims in light of all the s] facts, you believe that claim is more likely true than not true. To put it differently, if you were to put all of the evidence in favor of [Plaintiff] and all of the evidence in favor of [Defendant] on opposite sides of the scales, [Plaintiff] would have to make the scale tip to her side. If [Plaintiff] fails to meet this burden on any of her claims, your verdict on that claim must be for [Defendant]. In defense to one or more of [Plaintiff' claims, [Defendant] has asserted s] an affirmative defense(s), which will be described to you more fully later. An affirmative defense is more than a denial of the claim. In terms of applying the burden of proof, you should treat [Defendant' affirmative defense(s) in the same way you treat [Plaintiff] s] claims. That is, [Defendant], as the asserting party, has the burden of proving that the affirmative defense is more likely true than not true. In evaluating whether [Plaintiff] and [Defendant] have met their respective burdens on their claims and defenses, you should also know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matter in issue at

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this trial. Nor does the law require parties to produce as exhibits all papers or other things mentioned in the evidence in the case.

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Burden of Proof (Sample 2)

This is a civil case. The burden of proof, therefore, is by a " preponderance of the evidence." A " preponderance"means that no matter who produces the evidence, when you consider a particular claim in light of all the facts, you believe that claim is more likely true than not true. To put it differently, if you were to put all of the evidence in favor of one party and all of the evidence in favor of the other party on opposite sides of the scales, the party bearing the burden of proof would have to make the scale tip to its side. In this case Monroe, as Plaintiff, bears the burden of proof with regard to its claim that Bachelor Gulch defaulted in its obligations under § 9.1.1 of the Agreement to provide a closing date on or before September 1, 2002. Bachelor Gulch bears the burden of proof with regard to its defense of repudiation. In evaluating whether either party has met its respective burdens, you should also know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matter in issue at this trial. Nor does the law require parties to produce as exhibits all papers or other things mentioned in the evidence in the case.

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Burden of Proof (Sample 3) This is a civil, rather than criminal, case and therefore PDI has the burden of proving its claim by what is called a preponderance of the evidence. " a By preponderance of the evidence"means that no matter who produces the evidence, when you consider the claim of PDI in light of all the facts, you believe that PDI' claim is s more likely true than not true. To put it differently, if you were to put all of the evidence in favor of PDI and all of the evidence in favor of ProLease and Ramamoorthy on opposite sides of the scale, PDI would have to make the scale tip to its side. If PDI fails to meet this burden, your verdict must be for ProLease and Ramamoorthy. In defense to the claim of PDI, ProLease and Ramamoorthy have asserted an affirmative defense, which will be described to you more fully later. An affirmative defense is more than a denial of the claim. You should treat an affirmative defense in the same way you treat PDI' claim. That is, ProLease and Ramamoorthy, as the parties s asserting the affirmative defense, have the burden of proving that defense by the same standard, that is, of proving that the affirmative defense is more likely true than not true. In evaluating whether PDI, on the one hand, and ProLease and Ramamoorthy, on the other hand, have met their respective burdens on their claims and defenses, you should also know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matter at issue at this trial. Nor does the law require parties to produce as exhibits all papers or other things mentioned in the evidence in the case.
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INSTRUCTION NO. 1.9 Juror Conduct Your conduct as jurors is of the utmost importance. First, do not talk with one another about this case or about anyone who has anything to do with it until the end of the case when you go the jury room to decide on your verdict. Second, do not talk with anyone else about this case or about anyone who has anything to do with it until the trial has ended and you have been discharged as jurors. " Anyone else"includes members of your family and your friends. You may tell them that you are a juror in a case and that I have ordered you not to tell them anything else about it until the case is over. Third, do not let anyone talk to you about the case or about anyone who has anything to do with it. If someone tries to talk to you, please report it to me immediately. Fourth, 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 the case. Fifth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own. Sixth, 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.

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Seventh, each of you will have one or more notebooks containing the names of the witnesses and copies of exhibits. You are free to take notes in order to enhance your memory or assist you in recollecting during your deliberations. I caution you, however, not to become a slave to your notes. It is most important that you observe the witnesses and listen to their testimony. Your note taking should merely assist you.

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Section 2.0 Instructions for Use During Trial

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INSTRUCTION NO. 2.1 Consideration of Deposition Testimony A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Deposition testimony can be read into evidence or shown by videotape. You are to give the same consideration to deposition testimony as to live testimony presented here in the courtroom. That is, you are to judge the credibility of the witness and determine the weight to be given to the testimony to the best of your ability under the circumstances, as if the witness had been before you on the witness stand when he or she made the statement under oath.

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INSTRUCTION NO. 2.2 Opinion Evidence and Expert Witnesses You will hear opinion evidence from people described as experts. People who by knowledge, skill, experience, training or education, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinions. Expert 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 opinions, and all of the other factors that you consider when determining the credibility of the other witnesses. Experts generally rely upon some assumptions in developing their opinions. These assumptions are likewise subject to your evaluation and should be considered along with the rest of the evidence. In resolving the conflict in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the qualifications and believability of each witness, the reasons for each opinion and the matter upon which it is based.

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INSTRUCTION NO. 2.3 Charts, Summaries and Graphic Materials (if applicable) A number of charts, summaries and other graphic materials will be shown to you in order to help explain the facts and documents in evidence in the case. However, such charts, summaries and materials are not in and of themselves evidence or proof of any facts. If such materials do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them.

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INSTRUCTION NO. 2.4 Testimony Provided Through Interpreter (if applicable) Certain testimony will be provided to you through interpreters. The interpreters will each take an oath to translate the questions of counsel and the answers of the witnesses accurately. You are to consider the testimony provided through the interpreters as if it had been given directly by the witness.

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Section 3.0 Substantive Instructions

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INSTRUCTION NO. 3.1 Nature of Plaintiff' Claim. s Brad Anderson' claim in this case is technically known as a claim for s " wrongful termination in violation of public policy." To understand the nature of this claim, you need to know that under Colorado law, the general rule is that an employee hired for an indefinite period of time and without any contract limiting his or his employer' right to terminate his employment, is an " s at-will"employee. " At-will" employment, in turn, means that the employment may be terminated at any time by either the employer or the employee without notice or cause. There are several exceptions to the rule that at-will employees may be terminated at any time without notice or cause, and one of those exceptions is a termination " violation of public policy." in In Colorado, an employer is prohibited from discharging an employee for reasons contrary to widely accepted public policies. The Colorado Worker' s Compensation Act is such a policy. An employer may not terminate an employee for exercising his protected right to pursue a worker' compensation claim. Here, Brad s Anderson claims he was terminated for exercising his right to seek worker' s compensation benefits for a work-related injury, and doing so with the aid of an attorney.

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INSTRUCTION NO. 3.1 Nature of Plaintiff' Claim. s
Zolnick asserts two claims for relief in this case: (1) a federal claim for discrimination in violation of the Americans with Disabilities Act (ADA); and (2) a state law claim for constructive discharge. For his ADA claim, Zolnick contends GPC violated his rights under the ADA by viewing him as disabled when he was not and refusing to allow him to return to work with certain physician-recommended accommodations. Under the ADA, a person capable of performing the essential functions of his job with reasonable accommodation is protected from discrimination on the basis of a disability, whether the person is actually disabled or simply viewed that way by his employer. Specifically, the ADA not only prohibits discrimination against disabled employees, but also against employees who are not actually disabled but have a " record"of being disabled or are " regarded as"being disabled when they are not. In this case, Zolnick claims he was discriminated against not because he was actually disabled at the time he sought to return to work, but because he had a " record"of being disabled or was " regarded as"being disabled by GPC when he was not. Zolnick claims this discrimination took three forms: (1) a refusal to allow him to return to work; (2) a refusal to accommodate him in the ways recommended by the doctors; and (3) a refusal to engage in an interactive process mandated by the ADA. GPC denies any liability to Zolnick under the ADA. GPC denies Zolnick had a record of a disability, denies it regarded Zolnick as disabled, and denies it discriminated against him on either basis. According to GPC, Zolnick could not perform the essential functions of his -44-

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job when he sought to return to work, and contends the accommodations sought by Zolnick to allow him to return to work were tantamount to hiring someone else to perform the essential functions of his job for him, which were unreasonable and not required by the law. For his second claim for relief, Zolnick asserts GPC' actions in refusing to allow s him to return to work created a situation in which he had no choice but to quit, a concept known as " constructive discharge,"which is prohibited under Colorado law. It is your job to determine whether Zolnick has proven either or both of his claims by a preponderance of the evidence.

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INSTRUCTION NO. 3.2 Wrongful Termination: Elements of Plaintiff' Claim s For Brad Anderson to recover from Royal Crest on his claim of wrongful discharge in violation of public policy, you must find that all of the following have been proved to be more likely true than not true: 1. 2. 3. Brad Anderson was employed by Royal Crest. Royal Crest discharged Mr. Anderson. Royal Crest discharged Mr. Anderson because he exercised his right to seek worker' compensation under Colorado law and to do so with the assistance s of an attorney. If you find that any of these statements 1 -3 has not been proved, then your verdict must be for Royal Crest. If you find that all three of these statements have been proved, then you must go on to consider Royal Crest' affirmative defense that Anderson s failed to mitigate his damages (Instruction No. 3._).

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INSTRUCTION NO. __ CAUSE - DEFINED The word " cause"or " because"as used in Instruction 3.2 means an act or failure to act which in natural and probable sequence produced the claimed injury. It is a cause without which the claimed damage would not have been incurred.

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INSTRUCTION NO. 3.3 Cause and Concurrent Causes The word " cause"as used in these instructions means an act or failure to act that in the natural and probable sequence produced the claimed injury. It is a cause without which the injury would not have been incurred. If more than one act or failure to act contributed to the injury, then each act or failure to act may have been a cause of the injury. Such causes are known as " concurrent causes." The plaintiff is not required to show that the act or failure to act of the defendant was the sole and exclusive cause of its injury or the last or nearest cause. Instead, plaintiff must show that, but for the defendant' act or omission, its injury would s not have occurred.

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INSTRUCTION NO. 3.5 Comparative Fault If your verdict is for Isabel Ceja on her claim that Weinig sold a defective product, you must consider Weinig' affirmative defense of comparative fault. This s defense requires you to determine whether Ms. Ceja' damages, in addition to being s caused by the defect or defects you found in the Weinig machine, were also caused by Ms. Ceja' own fault and/or by the fault of her employer, Pillow Kingdom. s Ms. Ceja is at fault in this case if you find both of the following by a preponderence of the evidence: 1. Ms. Ceja failed to do something that a reasonably careful person would do, or did something that a reasonably careful person would not do, under the same or similar circumstances to protect herself from the defect(s) in the Weinig machine; and 2. Such conduct by Ms. Ceja was a cause of her injuries.

Similarly, Pillow Kingdom is at fault in this case if you find both of the following by a preponderence of the evidence: 1. Pillow Kingdom failed to do something that a reasonably careful person would do, or did something that a reasonably careful person would not do, under the same or similar circumstances to protect Ms. Ceja from the defect(s) in the Weinig machine; and 2. Such conduct by Pillow Kingdom was a cause of Ms. Ceja' injuries. s
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If you find that Ms. Ceja and/or Pillow Kingdom were at fault as I have just described, then, after you determine Ms. Ceja' damages as I will direct you in a moment s (Instruction No. 3.7), you must also determine to what extent Weinig' defective s machine, Ms. Ceja' fault, if any, and Pillow Kingdom' fault, if any, contributed to s s Ms. Ceja' damages. In making this determination, you must express Weinig' s s contribution to Ms. Ceja' damages and the contribution of Ms. Ceja, if any, and the s contribution of Pillow Kingdom, if any, as a percentage of 100. The total amount of any damages awarded to Ms. Ceja on her claim of sale of defective product will be reduced by the percentage of the fault, if any, you find for Ms. Ceja and Pillow Kingdom.

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INSTRUCTION NO. 3.6 Damages--Introduction You must determine damages in accordance with these instructions. The fact I will instruct you on the measure of damages does not mean I am instructing you as to which party is entitled to your verdict, or that I am instructing you to award or not award damages. The questions of whether or not damages are to be awarded, and the amount of such damages, are for your consideration alone. If you decide to award damages, you should fix the amount using calm discretion and sound reason, not sympathy, prejudice, or speculation. Difficulty or uncertainty in determining the precise amount of damages does not prevent you from deciding an amount. You should use your best judgment based on the evidence.

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INSTRUCTION NO. 3.7 Determination of Damages Isabel Ceja has the burden of proving, by a preponderance of the evidence, the nature and extent of her damages. If you find in Ceja' favor, you must determine the s total dollar amount of her damages, if any, that were caused by Michael Weinig' s defective product; Ceja' fault, if any; and the fault, if any, of Pillow Kingdom. s In determining such damages, you shall consider the following: 1. Any noneconomic losses or injuries Ceja has had to the present time or

that she will probably have in the future, including: physical and mental pain and suffering, inconvenience, emotional stress, and impairment of the quality of life. In considering damages in this category, you shall not include actual damages for physical impairment or disfigurement, because these damages, if any, are to be included in a separate category. 2. Any economic losses or injuries Ceja has had to the present time or

that she will probably have in the future, including: loss of earnings or damage to her ability to earn money in the future, medical, hospital, and other expenses. In considering damages in this category, you shall not include actual damages for physical impairment or disfigurement, as these damages, if any, are to be included in a separate category. 3. Any physical impairment or disfigurement. In considering damages in

this category, you shall not include damages again for losses or injuries already determined under either numbered paragraph 1 or 2 above.
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(alternative) INSTRUCTION NO. __ DAMAGES - ACTUAL OR NOMINAL If you find in favor of UIH or UIH Asia on its claim of breach of contract, then you must award actual or nominal damages. To award actual damages, you must find by a preponderance of the evidence that the plaintiff incurred actual damages as a result of the breach, and the amount thereof. To the extent that actual damages have been proved by the evidence, you shall award as actual damages the amount necessary to place the plaintiff in the position it would have enjoyed had the breach not occurred; that is, you shall award plaintiff the benefit of its bargain with the defendant. If you find in favor of the plaintiff, but do not find any actual damages, you shall nonetheless award the plaintiff nominal damages in the sum of one dollar.

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INSTRUCTION NO. __ Multiple Recovery Prohibited A plaintiff in a civil action may recover only once for the same injury, even though it seeks an award of damages for that injury under several theories of relief. For example, a plaintiff who lost $100 as a result of defendant's conduct may recover only $100, even if plaintiff sought $100 in damages from defendant on one claim, and $100 in damages from defendant on a different claim. In this case, UIH is seeking damages under six different theories of relief: fraud; negligent misrepresentation; breach of contract; securities fraud; control person liability; and breach of fiduciary duty. Under the rule prohibiting multiple recovery, UIH may recover its damages only once, even if you return verdicts in UIH's favor on more than one of its claims for relief. I am instructing you on the rule prohibiting multiple recovery so that you will be aware of the law on this issue. It is I, rather than you, however, who will apply the rule. You are specifically instructed to consider each of UIH's claims independently. That is, you are to consider each of these claims as though it were the only claim in this case. If you find in favor of UIH on any one of its claims, you are to write in an award of damages on that claim without regard to your finding for or against UIH on any other claim. I will apply the rule when I issue my judgment on your verdict, whatever that may be.

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Perhaps it bears repeating that nothing in this or any other instruction is meant to suggest what your finding on any or all claims should be. My instructions on damages are only to be applied in the event you find liability.

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INSTRUCTION NO. 3.__ Exemplary Damages In addition to compensation for their actual damages, Mr. and Mrs. Dwyer also seek an award of punitive or exemplary damages based on their claim for false representation. If you find in favor of Mr. and Mrs. Dwyer and award actual damages on their claim for false representation, then you shall consider whether exemplary damages should be assessed against Les Kelly and RitePlace. If you find beyond a reasonable doubt that the injury complained of was attended by circumstances of malice or willful and wanton conduct, then in addition to actual damages, you may also assess a reasonable sum as exemplary damages, not to exceed the amount awarded as actual damages. " Reasonable doubt"means an uncertainty of mind in which your judgment is not at rest and you can explain this uncertainty based on a fair and thoughtful consideration of all of the evidence, or lack of evidence, in the case.

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INSTRUCTION NO. __ MALICE OR WILLFUL AND WANTON CONDUCT--DEFINED "Attended by circumstances of malice or willful and wanton conduct" means an act or omission purposefully committed by a person who must have realized that the conduct could cause damages to others, and was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights of others, particularly the plaintiffs.

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Section 4.0 Final Instructions

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INSTRUCTION NO. 4.1 Jury Deliberations -- General Instructions Each of you has a copy of the instructions to consult as you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts, you must apply and follow the laws contained in these instructions whether you agree with them or not. Your decision is called a verdict and is reached by applying those laws to the facts as you find them. You must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. You have taken an oath promising to do just so. You must follow all of these instructions and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything I may say or do any suggestions as to what verdict you should return. Your verdict is a matter entirely for you to decide.

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INSTRUCTION NO. 4.2 Jury - Deliberations When you go to the jury room to begin your deliberations, you must elect one of you to serve as your Presiding Juror. He or she will preside over your deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreements if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it with your fellow jurors, and listened to the views of your fellow jurors. I offer some suggestions on how you might do this in the next jury instruction, entitled " Jury - The Deliberations Process." Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict, but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight of the evidence simply to reach a verdict.

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INSTRUCTION NO. 4.3 Jury - The Deliberations Process Once you have elected your Presiding Juror as directed by the previous instruction, you are free to proceed as you agree is appropriate. Therefore, I am not directing you how to proceed, but I offer the following suggestions that other juries have found helpful so that you can proceed in an orderly fashion, allowing full participation by each juror, and arrive at a verdict that is satisfactory to each of you. First, it is the responsibility of the Presiding Juror to encourage good communication and participation by all jurors and to maintain fairness and order. Your Presiding Juror should be willing and able to facilitate productive discussions even when disagreements and controversy arise. Second, the Presiding Juror should let each of you speak and be heard before expressing his or her own views. Third, the Presiding Juror should never attempt to promote nor permit anyone else to promote his or her personal opinions by coercion or intimidation or bullying of others. Fourth, the Presiding Juror should make certain that the deliberations are not rushed to reach a conclusion. If the Presiding Juror you select does not meet these standards, he or she should voluntarily step down or be replaced by a majority vote.

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After you select a Presiding Juror you should consider electing a secretary who will tally the votes, help keep track of who has or hasn' spoken on the various t issues, make certain that all of you are present whenever deliberations are under way and otherwise assist the Presiding Juror. Some juries are tempted to start by holding a preliminary vote on the case to " where we stand." It is most advisable, however, that no vote be taken before a see full discussion is had on the issue to be voted on, otherwise you might lock yourself into a certain view before considering alternative and possibly more reasonable interpretations of the evidence. Experience has also shown that such early votes frequently lead to disruptive, unnecessarily lengthy, inefficient debate and ineffective decision-making. Instead, I suggest the Presiding Juror begin your deliberations by directing the discussion to establishing informal ground rules for how you will proceed. These rules should assure that you will focus upon, analyze and evaluate the evidence fairly and efficiently and that the viewpoints of each of you is heard and considered before any decisions are made. No one should be ignored. You may agree to discuss the case in the order of the questions presented in the special verdict form or in chronological order or according to the testimony of each witness. Whatever order you select, however, it is advisable to be consistent and not jump from one topic to another. To move the process of deliberation along in the event you reach a controversial issue, it is wise to pass it temporarily and move on to the less controversial

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ones and then come back to it. You should then continue through each issue in the order you have agreed upon unless a majority of you agrees to change the order. It is very helpful, but certainly not required of you, that all votes be taken by secret ballot. This will help you focus on the issues and not be overly influenced by personalities. Each of you should also consider any disagreement you have with another juror or jurors as an opportunity for improving the quality of your decision and therefore should treat each other with respect. Any differences in your views should be discussed calmly and, if a break is needed for that purpose, it should be taken. Each of you should listen attentively and openly to one another before making any judgment. This is sometimes called " active listening"and it means that you should not listen with only one ear while thinking about a response. Only after you have heard and understood what the other person is saying should you think about a response. Obviously, this means that, unlike TV talk shows, you should try very hard not to interrupt. If one of your number is going on and on, it is the Presiding Juror who should suggest that the point has been made and it is time to hear from someone else. You each have a right to your individual opinion, but you should be open to persuasion When you focus your attention and best listening skills, others will feel respected and, even while they may disagree, they will respect you. It helps if you are open to the possibility that you might be wrong or at least that you might change your mind about some issues after listening to other views.

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Misunderstanding can undermine your efforts. Seek clarification if you do not understand or if you think others are not talking about the same thing. From time to time the Presiding Juror should set out the items on which you agree and those on which you have not yet reached agreement. In spite of all your efforts, it is indeed possible that serious disagreements may arise. In that event, recognize and accept that " getting stuck"is often part of the decision-making process. It is easy to fall into the trap of believing that there is something wrong with someone who is not ready to move toward what may be an emerging decision. Such a belief is not helpful. It can lead to focusing on personalities rather than the issues. It is best to be patient with one another. At such times slower is usually faster. There is a tendency to set deadlines and seek to force decisions. Providing a break or more time and space, however, often helps to shorten the overall process. You may wish from time to time to express your mutual respect and repeat your resolve to work through any differences. With such a commitment and mutual respect, you will most likely render a verdict that leaves each of you satisfied that you have indeed rendered justice.

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INSTRUCTION NO. 4.4 Communications with Judge If it becomes necessary during your deliberations to communicate with me, you may send a folded note through the court security officer, signed by one of you. Do not d