The Ninth Circuit posted March 2023 revisions to its
Model Jury Instructions
this week. In this post, we will examine the changes to the civil instructions.
Instruction 2.13 (Expert Opinion) is revised to read "This opinion testimony is allowed, because of the specialized knowledge, skill, experience, training, or education
or experience of this witness." A new paragraph is added at the end of the Comment:
This instruction is appropriate for a witness who provides only expert opinion testimony. If the same witness provides expert opinion testimony and percipient witness testimony (whether fact testimony, lay opinion testimony, or both), these different roles should be clarified for the jury, even in a civil case. Model Criminal Instruction 3.15 (Dual Role Testimony) provides guidance.
The Comment to Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen)
now cites Dodge v. Evergreen School District, 56 F.4th 767, 778 (9th Cir. 2022) (concluding that teacher engaged in expression as private citizen entitled to First Amendment protection rather than employee when he “display[ed] a message on a personal item while attending a teacher-only training”).
The Comment to Instruction 9.11 (Particular Rights—First Amendment—“Citizen” Plaintiff) now clarifies that the Tinker standard applies to "campus" speech, and adds a couple of paragraphs discussing Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2045 (2021),
Chen Through Chen v. Albany Unified Sch. Dist., 56 F.4th 708, 720 (9th Cir. 2022), and Lathus v. City of Huntington Beach, 56 F.4th 1238, 1241 (9th Cir. 2023).
The Comment to Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) now observes that a "suspect’s previous violent conduct does not justify non-trivial force where the suspect poses no immediate safety threat," citing Andrews v. City of Henderson, 35 F.4th 710, 719 (9th Cir. 2022).
The Comment to Instruction 9.35 (Bivens Claim Against Federal Defendant in Individual Capacity—Elements and Burden of Proof) now cites Pettibone v. Russell, 59 F.4th 449, 457 (9th Cir. 2023), regarding the limits on Bivens actions in Egbert v. Boule, 142 S. Ct. 1793 (2022).
The Comment to Instruction 10.10 (Civil Rights—Title VII— “Adverse Employment Action” in Retaliation Cases) now cites Dodge v. Evergreen School District, 56 F.4th 767, 774 (9th Cir. 2022) (in action brought under 42 U.S.C. § 1983, concluding statement that employee would “need to have [your] union rep” if he persisted in engaging in speech on matter of public concern made as private citizen). It also makes some clerical changes, substituting "discussing" for "involving."
The Introductory Comment to Instruction 12 (AMERICANS WITH DISABILITIES ACT) adds two paragraphs at the end discussing Langer v. Kiser, 57 F.4th 1085 (9th Cir. 2023).
The Comment to Instruction 12.1C (ADA Employment Actions—Regarded as Disability—Elements) now cites
SoCal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 817 (9th Cir. 2023) (“To establish disability under the ‘regarded as disabled’ prong, [plaintiffs] need to show that [defendants] perceived their clients as being disabled and discriminated against them on that basis.”).
The elements list for Instruction 13.1 (Employee Claim Against Union and/or Employer—Labor Management Relations Act (LMRA) § 301 (29 U.S.C. § 185)) has been revised as follows:
that the plaintiff was discharged from employment by the
[name of employer;];
that such discharge was without “just cause”; and
that the plaintiff filed a grievance with [name of
4. that [name of union] breached its duty to fairly represent the plaintiff’s interests under the collective bargaining agreement by handling the grievance proceedings arbitrarily, discriminatorily, or in bad faith.
The Comment to this instruction has been thoroughly rewritten.
The Comment to Instruction 13.2 (LMRA § 301—Damages (29 U.S.C. § 185)), starting with the fifth paragraph, has been thoroughly rewritten. Also, the third question on the Verdict Form has been revised: "Do you find from a preponderance of the evidence that the defendant union breached its duty of fair representation owed to the plaintiff as one of its members by handling the grievance proceedings arbitrarily, discriminatorily, or in bad faith?"
From time to time over the years I have introduced new features to this site. I generally give them a few months to learn whether people are using them (page views), and to see how much work is involved in keeping them current. If they get a lot of page views, I am OK with doing the work to keep them current; conversely, if they are easy to maintain, I am OK with low traffic. Sadly, I must say that they have been mostly low traffic, high maintenance tools, and I have let several of them go over the years.
One successful feature has been the jury instruction search box on the trialdex
front page. It has radio buttons to select full text searches for either federal or state jury instructions. Not every circuit or state has searchable jury instructions on the Internet, but plenty of them do. I have several writing projects going on, and just about always check for applicable jury instructions and annotations
(you should, too). The search window saves me the time-consuming task of searching every court site individually.
Lately, I have been working on a new 2024 edition of
360 Federal Crimes, a field guide to the most commonly charged federal crimes. It is important to check every legal assertion in the book against the positions taken in every official instruction, and I have been using the trialdex search box to do that.
Anyway, it struck me that it would often be quicker to just search the instruction titles. So I put all of the tables of contents of all of the available official federal criminal pattern instructions on one page with links to the full text, so that they could be searched with a simple Ctrl F. Searching for "entrapment," for example, readily pulls up every entrapment (and entrapment by estoppel) instruction. It is not perfect, and sometimes you'll want to use the more sophisticated search terms available on the regular search box, but I have found it useful so far.