ORDER

D.P. MARSHALL, JR., District Judge.

The Court is attaching working drafts of its (1) voir dire and (2) preliminary instructions. Objections due by noon on 8 March 2019—so we can have finals ready for Monday morning. The Court continues to work on draft final instructions and verdicts. But until Don Tate makes his election today, things remain too uncertain to make clear proposals possible. The Court will therefore circulate drafts Wednesday.

So Ordered.

(1) VOIR DIRE

(2) PRELIMINARY INSTRUCTIONS

1.

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, not a criminal case. Chad Sandine and his trucking companies, Groundhogz, were long-haul shippers for FedEx. Groundhogz sold some of its trucks, trailers, and FedEx routes to Don Tate and his company, Tate Express. Each side claims the other violated the parties' contract. The jury will decide if there was any breach of contract and, if so, the amount of resulting damages. Each side also alleges fraud by the other side in the deal. The jury will also decide those issues.

From all the evidence, you will decide what the truth is. 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. You will then apply those facts to the law that I give you in these instructions and in my other instructions, and in that way reach your verdict. While you are the sole judges of the facts, you must follow the law, as stated in my instructions, whether you agree with it or not.

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.

2.

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 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. Ignore it.

4. Anything you see or hear about this case outside the courtroom is not evidence. Ignore it.

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." Don't be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. Give all evidence the weight and value you believe it is entitled to receive.

3.

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, 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 a lie. That may depend on whether it has to do with an important fact or only a small detail.

4.

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. The preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented. If Sandine and Groundhogz have the burden of proof on a fact, and the evidence is equally balanced, then Sandine and Groundhogz have not carried their burden. If Tate and Tate Express have the burden of proof on a fact, and the evidence is equally balanced, then Tate and Tate Express have not carried their burden.

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. Put the reasonable-doubt standard out of your minds.

5.

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.

6.

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. Don't share them with your fellow jurors during the trial. When you go to the jury room to deliberate and decide the case at the end of the trial, then you can share them with each other. 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 locked up. No one will read them. At the end of the trial, all notes will be destroyed.

7.

During the trial, from time to time I'll have to talk just to the lawyers. We'll have a bench conference or a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to discuss certain evidence questions, and to avoid confusion and error. We'll keep the number and length of these conferences to a minimum.

8.

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 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 end of the trial after I've discharged you as jurors.

Third, when you are outside the courtroom, don't let anyone tell you anything about the case, or about anyone involved with it, until the trial has ended and I've discharged you as jurors. If someone should tries to talk to you about the case during the trial, report it to the court security officer immediately.

Fourth, during the trial don't talk with any of the parties, lawyers, or witnesses involved in this case—don't even pass the time of day with any of them. It is important not only that you do justice, but that you also appear to do justice. If a person from one side of the lawsuit sees you talking to a person from the other side of the lawsuit, a suspicion about your fairness might arise. I suspend the rules of good manners. Please ignore the lawyers, parties, witnesses, me, and my staff outside the courtroom.

Fifth, you'll have to tell your family, friends, teachers, coworkers, or employer that you've been selected as a juror and must be in court. Warn them not to ask you for details. Don't name the case, the parties, or tell them what it's about. Don't listen to anything someone may say to you, or in your presence, about the case. You must not communicate with anyone about the parties, witnesses, participants, claims, evidence, or anything else about the case, or tell anyone anything about the jury's deliberations in this case, until after I accept your verdict.

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, don't do any Internet research—using Google, for example—about the case. Don't do any research using libraries, reading the newspaper, or in any other way making any investigation about this case on your own. Don't visit or view any place discussed in this case. Don't use Internet maps or Google Earth or any other program or device to search for or to view any place discussed in the testimony. And don't research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or me.

Ask each juror: Juror No. —, on your oath, do you promise not to post anything about your jury service on any social media website such as Facebook, Twitter, Instagram, or the like during the trial? On your oath, do you promise not to use the Internet to look up anything about the case, the matters discussed, the lawyers, Chad Sandine, Groundhogz Express, Inc., Groundhogz Logistics, Inc., Don Tate, Don Tate Express, Inc., any witnesses me, or the law?

Seventh, don't read any news 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 report about the case or about anyone involved with it. In fact, until the trial is over I suggest that you take a news holiday: avoid reading newspapers; avoid watching TV news; avoid radio newscasts; and avoid news on the Internet. I also suggest that you avoid social media, such as Facebook and Twitter. I don't know whether there will be any news reports about this case. But if there are, you might stumble into reading or listening to something before you could do anything about it. I assure you: by the time you've heard all the evidence in this case, you'll know more about it than anyone could learn through the news media.

The reason for all these rules is to protect the integrity of the trial.

9.

When I say Groundhogz I mean Chad Sandine, Groundhogz Express, Inc., and Groundhogz Logistics, Inc. When I say Tate I mean Don Tate and Tate Express.

Here is how the trial will go:

First, one of the lawyers for Groundhogz will make an opening statement. Next, one of the lawyers for Tate will make an opening statement. An opening statement is not evidence, but simply a summary of what the lawyer expects the evidence to be.

Next, Groundhogz's lawyers will then present evidence by calling witnesses, and Tate's lawyers may cross-examine those witnesses. After Groundhogz's case, Tate's lawyers will present evidence by calling witnesses, and Groundhogz's lawyers may cross-examine those witnesses. Finally, Groundhogz's lawyers may offer rebuttal evidence.

After presentation of evidence is completed, the Court will give you some final instructions. Then 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 close, you'll go to the jury room to deliberate on your verdict.