D.P. MARSHALL, JR., District Judge.
5.
So Ordered.
Ladies and gentlemen, I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I will give you further instructions. I may also give you instructions during the trial. Unless I specifically tell you otherwise, all these instructions—both those I give you now and those I give you later — are equally binding on you and must be followed.
I am the judge of the law and you are the judges of the facts. As judges of the facts, it's your duty to determine the truth from the evidence and the reasonable inferences arising from the evidence. In making your factual decisions, you must not engage in guess work or speculation.
This is a civil case. As I said, William Downing has sued his former employer, the Arkansas Department of Finance and Administration, and two of his former managers there, Bob Haugen and David Justice. The Department of Finance and Administration is a state agency that handles, among many other things, the redistribution and sale of surplus property used in state government. The surplus property includes things like office furniture, vehicles, computers, and furnishings. Mr. Downing worked for the Department handling this surplus property. He worked in the warehouse, did some computer tasks, and made online sale.
Downing has hip problems. He asked for, and received, twelve weeks of FMLA leave because he needed hip-replacement surgery. About a month after he returned to work, Downing's doctor concluded that Downing couldn't work more than two days a week in the warehouse or lift anything heavier than fifty pounds. The Department decided that Downing could no longer perform the essential functions of his job. Downing was fired.
Downing alleges that the Department, Haugen, and Justice violated the Family Medical Leave Act, the Americans with Disabilities Act, and the Rehabilitation Act. He says they unlawfully changed his job while he was on leave, didn't accommodate his physical limitations, and then fired him for discriminatory reasons. The Department, Haugen, and Justice say they didn't change the job, tried to accommodate Downing's limitations, and fired him only because he couldn't do key parts of the job.
Haugen is ill. I've excused him from attending the whole trial. If he is well enough later in the week, he'll testify. We'll see. I'll keep you posted. Don't hold it against Haugen, Justice, or the Department that Haugen isn't here. And don't lean in Haugen's favor out of concern for his health.
From all the evidence, you will decide what the facts are and answer the liability questions I'll list for you in a moment. Your answers to these questions will be your verdict in this case. You are entitled to consider all the evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw conclusions from facts that have been established by the evidence. Depending on your answers to the liability questions, the Court may ask you some questions about damages.
Do not allow any sympathy or any prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.
You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.
I have mentioned the word "evidence" "Evidence" includes the testimony of witnesses, documents, and other things received as exhibits, any facts that have been stipulated — that is, formally agreed to by the parties — and any facts that have been judicially noticed—that is, facts which I say you may, but are not required to, accept as true, even without evidence.
Certain things are not evidence:
1. Statements, arguments, questions, and comments by lawyers representing the parties in the case are not evidence.
2. Objections are not evidence. Lawyers have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustain an objection to a question, you must ignore the question and must not try to guess what the answer might have been.
3. Testimony that I strike from the record, or tell you to disregard, is not evidence and must not be considered.
4. Anything you see or hear about this case outside the courtroom is not evidence, unless I specifically tell you otherwise during the trial.
Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.
Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." You should not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.
In deciding what the facts are, you will have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.
In deciding what testimony of any witness to believe, you should consider several things: the witness's intelligence; the opportunity the witness had to have seen or heard the things testified about; the witness's memory; any motives that witness may have for testifying a certain way; the manner of the witness while testifying; whether that witness said something different at an earlier time; the general reasonableness of the testimony; and the extent to which the testimony is consistent with other evidence that you believe.
A caution about considering a witness's demeanor while testifying. Many folks are nervous just being in court. And there are bold liars and shy truth-tellers. Use your common sense and be discerning when judging someone's credibility based on their demeanor on the stand.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood. That may depend on whether it has to do with an important fact or only a small detail.
At the end of the trial you must make your decisions based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read back lengthy testimony. You must pay close attention to the testimony as it is given.
If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to answer the interrogatories. And do not let note taking distract you so that you do not hear other answers by the witness.
When you leave at night, your notes will be secured and not read by anyone.
During the trial it will be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference while the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.
Finally, to ensure fairness, you as jurors must obey the following rules:
First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.
Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.
Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to the bailiff immediately.
Fourth, during the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side—even if it is simply to pass the time of day —an unwarranted and unnecessary suspicion about your fairness might arise. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.
During the trial, while you are in the courthouse, and after you leave for the day, do not provide any information to anyone by any means about this case. For example, do not talk face-to-face or use any electronic device or media, such as the telephone, a cell phone, a smart phone, iPad, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, Instagram, YouTube, or Twitter, to communicate to anyone any information about this case until I accept your verdict.
Sixth, do not do any Internet research — using Google, for example. Do not do any research by using libraries, reading the newspapers, or in any other way making any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use Internet maps or Google Earth or any other program or device to search for or to view any place discussed in the testimony. Also do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or me. Don't, for example, look at the Department's website about surplus property for sale.
Seventh, do not read any news stories or articles in print, on the Internet, or in any blog, about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are, you might inadvertently find yourself reading or listening to something before you could do anything about it. I can assure you, however, that by the time you have heard the evidence in this case, you will know more about the matter than anyone will learn through the news media.
Finally, I want to reiterate that,
When the lawyers have finished questioning each witness, you may propose questions to clarify the testimony. In your questions, follow these rules:
Submit your questions in writing by passing them to the Court Security Officer. I will review each one with the lawyers. If the question is proper, the lawyers or I will ask it.
Don't put any special weight on a question just because a juror suggested it. Don't put any special weight on the question because I may be the one asking it. And consider the witness's answer just like any other piece of evidence.
You may not get your question answered. For example, I may decide that the question is not proper under the rules of evidence. And even if the question is proper, you may not get an immediate answer. For example, a later witness or a coming exhibit may provide the answer.
Don't feel slighted or disappointed if your question isn't asked or answered immediately. Remember, you are not advocates for either side; you are impartial judges of the facts.
The trial will proceed in the following manner:
First, Downing's lawyer will make an opening statement. Next, the lawyer for the Department, Haugen, and Justice will make an opening statement. An opening statement is not evidence, but simply a summary of what the lawyer expects the evidence to be.
Downing's lawyer will then present evidence by calling witnesses, and the lawyer for the Department, Haugen, and Justice may cross-examine those witnesses. Following Downing's case, the lawyer for the Department, Haugen, and Justice will present evidence by calling witnesses, and Downing's lawyer may cross-examine those witnesses.
Finally, Downing's lawyer may offer rebuttal evidence.
After presentation of evidence is completed, the lawyers will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence.
After the closing arguments, the Court will give you some final instructions. Then you'll go to the jury room to deliberate on your verdict.
You need to know a few terms of law to answer some of the fact questions in this case. Here are definitions of those legal terms. You don't have to write down these definitions or the questions. My staff will hand them out now. Please follow along as I read them.
Now, here are the questions that the jury will probably have to answer. The questions might change a little, depending on the evidence. But if that happens, I'll tell you.
The burden of proving a fact is placed upon the party whose claim or defense depends upon that fact. The party who has the burden of proving a fact must prove it by a preponderance of the evidence. To prove something by a "preponderance of the evidence" is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you cannot find that fact has been proved. The preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented.
You've probably heard of the term "proof beyond a reasonable doubt." This is a stricter standard, which applies in criminal cases. It does not apply in civil cases like this one. You should, therefore, put it out of your minds.
Downing has the burden of proof, by a preponderance of the evidence, on these disputed factual issues:
The Department, Haugen, and Justice have the burden of proof, by a preponderance of the evidence, on these disputed factual issues:
Members of the Jury, the instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions.
You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others because all are important. This is true even though some of those I gave you at the beginning of the trial are not repeated here.
The instructions I am about to give you now are in writing and will be available to you in the jury room. I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all instructions, whenever given and whether in writing or not, must be followed.
Nothing I say in the instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts. You will determine the facts. During this trial I have occasionally asked questions of witnesses. Do not assume that because I asked questions that I hold any opinion on the matters to which my questions related.
Justice through trial by jury must always depend on the willingness of each individual juror to seek the truth about the facts from the same evidence presented to all the jurors; and to arrive at a verdict by applying the same rules of law as given in the Court's instructions.
It is your duty to find from the evidence what the facts are. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.
I have mentioned the word "evidence." The "evidence" in this case consists of the testimony of witnesses, the documents and other things received as exhibits, and the facts that have been stipulated — that is, formally agreed to by the parties.
You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence in the case.
Certain things are not evidence. I will list those things again for you now:
Finally, if you were instructed that some evidence was received for a limited purpose only, you must follow that instruction.
Also, some of you may have heard the terms "direct evidence" and "circumstantial evidence." Do not be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.
In deciding what the facts are, you will have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, consider several things: the witness's intelligence; the opportunity the witness had to have seen or heard the things testified about; the witness's memory; any motives that witness may have for testifying a certain way; the manner of the witness while testifying; whether that witness said something different at an earlier time; the general reasonableness of the testimony; and the extent to which the testimony is consistent with any evidence that you believe.
A caution about considering a witness's demeanor while testifying. Many folks are nervous just being in court. And there are bold liars and shy truth-tellers. Use your common sense and be discerning when judging someone's credibility based on their demeanor on the stand.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.
As I told you at the start of trial, you need to know a few terms of law to answer some of the fact questions in this case. Here, again, are definitions of those legal terms.
This case is submitted to you on questions. Your answers to these questions will be your verdict in this case.
The questions ask whether or not you find certain facts. You may find a fact only if it has been proven by a preponderance of the evidence.
The burden of proving a fact is placed upon the party whose claim or defense depends upon that fact. The party who has the burden of proving a fact must prove it by a preponderance of the evidence. To prove something by a "preponderance of the evidence'' is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you cannot find that fact has been proved. The preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented.
You've probably heard of the term "proof beyond a reasonable doubt." This is a stricter standard, which applies in criminal cases. It does not apply in civil cases like this one. You should, therefore, put it out of your minds.
Downing has the burden of proof, by a preponderance of the evidence, on these disputed factual issues:
The Department, Haugen, and Justice have the burden of proof, by a preponderance of the evidence, on these disputed factual issues:
In conducting your deliberations and returning your verdict, there are certain rules you must follow. I will list those rules for you now.
First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict.
Third, if you need to communicate with me during your deliberations, you may send a note to me through the court security officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone — including me — how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law that I have given to you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be — that is entirely for you to decide.
Finally, the Question form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room; and when each of you has agreed on the answers, your foreperson will fill in the form, sign and date it, and advise the court security officer that you are ready to return to the courtroom.
The court security officer, and all other persons, are forbidden from communicating in any way with any member of the jury on any subject touching the merits of this case. Also, you are never to reveal to any person, not even to the Court, how the jury stands, numerically or otherwise, on the issues presented to you unless or until you reach a unanimous verdict.
Court security officer, do you solemnly swear to keep this jury together in the jury room, and not to permit any person to speak to or communicate with them concerning this case, nor to do so yourself unless by order of the Court or to ask whether they have agreed on a verdict, and to return them into the courtroom when they have so agreed, or when otherwise ordered by the Court, so help you God?
Sign and date this form.
Based on your answers to the Court's Questions about liability, Downing has prevailed on his claim under the Rehabilitation Act. You must now award Downing a sum that you find will fairly and justly compensate him for his damages you find he sustained as a direct result of the Department's conduct. Damages include:
Downing has a legal duty to "mitigate" his damages — that is, to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if you find that Downing failed to seek out or take advantage of an opportunity that was reasonably available to him, you must reduce his damages by the amount of the wages and fringe benefits Downing reasonably could have earned if he had sought out or taken advantage of such an opportunity.
Downing must prove his damages by a preponderance of the evidence. Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. And you must not award any damages as punishment or because of sympathy.
If you do not find that Downing's damages have monetary value, then you must return a verdict for Downing in the nominal amount of One Dollar.
State the amount of Downing's damages (as that term is defined in Instruction No. 9) from the Department's decision to fire Downing on 4 June 2014.
Sign and date this form.
"To challenge a juror for cause, a party must show actual partiality growing out of the nature and circumstances of the case. A district court is required to strike for cause any juror who is shown to lack impartiality or the appearance of impartiality, and, absent abuse of discretion, we will not interfere with the district court's determination of juror qualifications. The district court is given broad discretion in determining whether to strike jurors for cause because it is in the best position to assess the demeanor and credibility of the prospective jurors."
