Model Jury - Section 5

CIVIL INSTRUCTIONS

__________

5. PROOF--BURDENS AND ELEMENTS OF PROOF

(STANDARDIZED FORMAT)

5.01   BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE

   When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true.

   You should base your decision on all of the evidence, regardless of which party presented it.

Comment

   See Instruction 1.12 for preliminary instruction. This instruction may not apply to cases based on state law.

5.02   BURDEN OF PROOF--CLEAR AND CONVINCING EVIDENCE

   When a party has the burden of proof on any claim [or affirmative defense] by clear and convincing evidence, it means you must be persuaded by the evidence that it is highly probable that the claim [or affirmative defense] is true. [The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard.]

   [You should base your decision on all of the evidence, regardless of which party presented it.]

Comment

   This instruction may not apply to cases based on state law.

   The bracketed sentence in the first paragraph should be given if the court instructs on both the preponderance of the evidence and clear and convincing evidence.

   In federal cases, the "highly probable" standard has been used in explaining the meaning of clear and convincing evidence. See, e.g., Colorado v. New Mexico, 467 U.S. 310, 316 (1984); Buildex Inc. v. Kason Indus., 849 F.2d 1461, 1463 (Fed. Cir. 1988).

5.03   ELEMENTS OF PROOF--ONE DEFENDANT--NO COUNTERCLAIM OR   AFFIRMATIVE DEFENSE

   [On plaintiff's claim,] the plaintiff has the burden of proving each of the following by a preponderance of the evidence:

   1.   ;

   2.   ; and

   3.   .

   If you find that each of these things has been proved, your verdict should be for the plaintiff [on the claim]. On the other hand, if any of these things has not been proved, your verdict should be for the defendant [on the claim].

5.04   ELEMENTS OF PROOF--TWO OR MORE DEFENDANTS--

   NO COUNTERCLAIM OR AFFIRMATIVE DEFENSE

   [On plaintiff's claim,] the plaintiff has the burden of proving each of the following by a preponderance of the evidence:

   1.   ;

   2.   ; and

   3.   .

   If you find that each of these things has been proved against a defendant, your verdict should be for the plaintiff and against that defendant [on the claim]. On the other hand, if any of these things has not been proved against a defendant, your verdict should be for that defendant [on the claim].

5.05   ELEMENTS OF PROOF--COMPLETE AFFIRMATIVE DEFENSE

   The plaintiff has the burden of proving each of the following by a preponderance of the evidence:

   1.   ;

   2.   ; and

   3.   .

   The defendant has the burden of proving each of the following by a preponderance of the evidence:

   1.   ;

   2.   ; and

   3.   .

   If the plaintiff has failed to prove each of the things on which plaintiff has the burden of proof, your verdict should be for the defendant.

   If you find that each of the things on which plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff, unless you also find that each of the things on which the defendant has the burden of proof has also been proved, in which event your verdict should be for the defendant.

5.06   ELEMENTS OF PROOF--CLAIM AND COUNTERCLAIM

   In this case, there is a claim by the plaintiff and a counterclaim by the defendant. On each, you may find for or against either party.

   The plaintiff has the burden of proving each of the following by a preponderance of the evidence:

   1.   ;

   2.   ; and

   3.   .

   The defendant has the burden of proving each of the following by a preponderance of the evidence:

   1.   ;

   2.   ; and

   3.   .

   You may reach one of four results:

1.   you may find for the plaintiff on plaintiff's claim and against the defendant on defendant's counterclaim; or

2.   you may find for the defendant on defendant's counterclaim and against the plaintiff on plaintiff's claim; or

3.   you may find for the plaintiff on plaintiff's claim and for the defendant on defendant's counterclaim; or

4.   you may find against the plaintiff on plaintiff's claim and against the defendant on defendant's counterclaim.

[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]