ORDER

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

1. Calvin's response, No. 42, is noted. She won't try to admit the police crash report into evidence. Shelter's embedded motion to exclude that report, No. 39, is therefore denied as moot.

2. The Court is attaching its working drafts of (1) the voir dire, (2) the preliminary instructions, (3) the final instructions, and (4) the verdict form. The Court appreciated the parties' proposals. Please file any objection by 5 February 2020. Note the juror-questions procedure in draft preliminary instruction No. 5. And see Federal Rule of Civil Procedure 48(b) on the unanimous verdict.

So Ordered.

(1) VOIR DIRE

A. Preliminaries

B. Call Eighteen, But All—Notepads

C. General Background Questions

D. Case-Specific Questions

E. Juror Question Time

F. The Unasked Question?

G. Lawyers' Follow-Up Questions? Fed. R. Civ. P. 47(a).

H. Strikes for Cause. Fed. R. Civ. P. 47(c).*

I. Peremptory Challenges. Fed. R. Civ. P. 47(b).**

J. Seat and Swear Jury.

K. Thanks and Goodbye venire.

(2) PRELIMINARY INSTRUCTIONS

1.

Ladies and gentlemen, here are some first instructions about your duties as jurors. I may give you more as we go along. I will give you more instructions at the end of the trial. Follow all my instructions no matter when I give them.

I'm the judge of the law, you're the judges of the facts. It's your duty to determine the truth from the evidence and the reasonable inferences arising from the evidence. You must not engage in guess work or speculation.

This is a civil case, not a criminal case. In February 2018, Lashonda Calvin was driving on the I-55 bridge from West Memphis to Memphis. A car struck her from behind and drove away. The collision caused Calvin to strike a car in front of her. Calvin claims the driver that hit her was negligent, and the collision injured her. Shelter disagrees. The jury will have to decide the truth.

Consider all the evidence in the light of your own observations and experiences in the affairs of life. Use reason and common sense to draw conclusions from facts established by the evidence. Then apply those facts to the law that I give you in my instructions. That's how you reach your verdict. You're the sole judges of the facts, but you must follow the law, as I explain it to you, whether you agree with that law 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.

Don't 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.

"Evidence" includes the testimony of witnesses, documents, and other things received as exhibits. Evidence also includes any facts that have been stipulated—that is, formally agreed—by the parties. Evidence also includes any facts that have been judicially noticed—that is, facts which I say you must accept as true even without evidence.

Certain things are not evidence:

1. Statements, arguments, questions, and comments by lawyers are not evidence.

2. Objections are not evidence. Lawyers have a duty to object when they believe something is improper. Don't be influenced by the objection. If I sustain an objection to a question, ignore the question. And don't 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. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you if this occurs, and give you some instructions.

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 must decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, 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 the 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 any contradiction is an innocent misrecollection or lapse of memory or a lie. That may depend on whether the contradiction has to do with an important fact or a small detail.

4.

The burden of proving a fact is on the party whose claim or defense depends upon that fact. The party must prove facts 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 Lashanda Calvin—who brought this case—has the burden of proof on a fact, and the evidence is equally balanced, then she has not carried his burden. If Shelter has the burden of proof on a fact, and the evidence is equally balanced, then Shelter has not carried its 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 remember of the evidence. You will not have a written transcript to consult. You must therefore pay close attention to the testimony.

You may take notes to help you remember what witnesses said. If you do, keep your notes 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 try 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 federal 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, any of the people or companies involved in the case, 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.

Here is how the trial will go:

First, a lawyer for each side will make an opening statement. This is not evidence. The opening statement is a non-argumentative summary of what the lawyer expects the evidence to be.

Next, Calvin's lawyers will present evidence by calling witnesses, and Shelter's lawyers may cross-examine them. After Calvin's case, Shelter's lawyers will present evidence by calling witnesses, and Calvin's lawyers may cross-examine them. Finally, Calvin's lawyers may offer rebuttal evidence.

After all the evidence is in, I'll give you some final instructions. Then the lawyers will make their closing arguments. They'll summarize and interpret the evidence for you. But, closing arguments are not evidence. After the close, you'll go to the jury room to deliberate on your verdict.

(3) FINAL INSTRUCTIONS

1.

Follow all the Court's instructions. Written and spoken instructions are equally important. And it doesn't make any difference when I gave an instruction. Follow them all.

2.

Your job is to decide what happened. Don't take anything I said or did as a suggestion about what your decision should be. You're the judges of the facts, not me.

3.

Don't decide the case based on sympathy, prejudice, or emotion. Decide based on the evidence, the law, and your common sense. Decide this case as a dispute between persons of equal worth. All persons, including a corporation such as Shelter, are equal under the law.

4.

The evidence is the witnesses' testimony, the exhibits, any facts agreed by the parties, and any facts I've told you that you must accept as true. Anything the lawyers said (such as questions, statements, arguments, and objections) is not evidence. If I told you to disregard something, ignore it. If you saw or heard something about this case outside the courtroom, ignore that, too. If I told you some evidence must be used only for a limited purpose, do so.

5.

Be careful evaluating each witness's credibility. Use your life experience, and your common sense, in deciding what testimony you believe.

6.

An expert is a person who has special knowledge, skill, experience, training, or education on a subject. An expert may give his or her opinion on issues in controversy. You may consider the expert's opinion in light of his or her qualifications, credibility, the reasons given for the opinion, and the basis of the opinion. You are not bound to accept an expert's opinion. You should give it whatever weight you think it should have. As with any witness, you can believe some, all, or none of what an expert says. You may disregard any expert opinion if you find it to be unreasonable.

7.

The party with the burden of proof must prove the facts asserted by a preponderance of the evidence. That means the party must prove that something is more likely true than not true. I will tell you whether Calvin or Shelter has the burden of proof on particular issues. If Calvin has the burden of proof on a fact, and the evidence is equally balanced, then Calvin has not carried her burden. If Shelter has the burden of proof on a fact, and the evidence is equally balanced, then Shelter has not carried its burden. Neither Calvin nor Shelter must prove anything beyond a reasonable doubt. That's the standard for a criminal case, not a civil case like this one.

8.

Here are some rules of law about negligence.

First, "negligence" means the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case. To be negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.

Second, a failure to exercise ordinary care is negligence. "Ordinary care" means the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.

Third, it was duty of the driver who rear-ended Calvin to use ordinary care for the driver's own safety and the safety of others. Every person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will use ordinary care. To act on that assumption is not negligence.

Fourth, the fact that an accident occurred is not, by itself, evidence of negligence on the part of anyone.

Fifth, when two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway, and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road.

Sixth, drivers of motor vehicles have certain duties. A driver must keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case. A driver of a motor vehicle must also drive at a speed no greater than is reasonable and prudent under the circumstances, having due regard for any actual or potential hazards. A failure to meet the standard of conduct required by either of these two rules of the road is negligence.

9.

Calvin claims that the hit-and-run driver was negligent in operating his car. Calvin has the burden of proving three things:

10.

"Proximate cause" is a term of law. Here is a definition. "Proximate cause" means a cause which, in a natural and continuous sequence, produces damage and without the cause the damage would not have occurred.

This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.

11.

You may need to assess Calvin's alleged damages. If you reach that issue, you must decide the amount of money that will reasonably and fairly compensate her. In determining that amount, consider any of the following elements of damage that you find were proximately caused by any negligence of the hit-and-run driver:

Whether any of these elements of damage has been proved by a preponderance of the evidence is for you to determine.

In fixing the amount of damages, consider that an injured person must use ordinary care to determine whether medical treatment is needed, to obtain medical treatment, and to follow the instructions of her physician. Any damages resulting from a failure to use that ordinary care cannot be recovered.

12.

If you find that Calvin is entitled to damages arising in the future because of injuries, then you must decide the present value of those damages.

If these damages are continuing but not permanent, consider how long they will continue. If they are permanent, consider how long Calvin is likely to live.

I have used the term "present value." This simply means that you must take into account the fact that money recovered today will earn interest, if invested, until the time in the future when these losses will actually occur. Therefore, you must reduce any award of future damages to compensate for the reasonable earning power of money.

13.

Here are some general rules for your deliberations.

First, choose a foreperson. She or he will preside over your deliberations, sign your verdict, and speak for you here in Court.

Second, talk through the case in detail. Consider all the evidence. Discuss it fully with your fellow jurors. And listen attentively to others' views.

Third, make your own conscientious decision. Don't be afraid to change your mind if you're persuaded by the discussion. But don't make a decision simply because others think it is right. And don't agree just to get it done.

Fourth, try hard to reach agreement. Your verdict must be unanimous.

Fifth, if you need to communicate with me during your deliberations, send me a note through the court security officer. One or more jurors must sign the note. But, do not tell me—or anyone—how your votes stand numerically.

Sixth, your verdict will be your answers to questions. I'll read the verdict form to you now.

Seventh, from this point forward, other than a note to the Court, do not communicate with any person other than your fellow jurors about the merits of the case.

OATH

Court security officer, do you solemnly swear or affirm to keep this jury together in the jury room, not to permit any person to speak to or communicate with them about this case, nor to do so yourself unless by order of the Court or to ask whether they have agreed on a verdict, and return them into the courtroom when they have so agreed, or when otherwise ordered by the Court?

VERDICT

If you answered "Yes" to Question 1, answer Question 2.

If you answered "No", your deliberations are done.