What a good system for drafting jury instructions does
An eviction case is going to trial, and each side has to propose the instructions the judge will read to the jury. Here is what a good system does, in order, with a question for you at each step.
Pattern instructions are the wording a court has already approved for common points of law, and most of a proposed set is drawn from them. This list comes from the draft of this workflow already in the Commons materials and from a working prototype built against one court’s list of proposed instructions, including an account of what that build got wrong.
Answer the questions on the parts you know from your own practice. The Commons team reads every answer, fixes what the list gets wrong, and takes the harder questions to the cohort working on this area.
Reading the complaint and the list of proposed instructions
The parties file a joint list of the instructions each side proposes. The complaint and the first pages of that list hold the case details every instruction needs, which are the parties, the attorneys, the case number, the court, and the property. A detail read wrongly here repeats in every instruction that follows.
What a good system does
Take the complaint and the list of proposed instructions together, and say if one of them is missing before it starts.
Read the case number, the court and the county, the case name, the parties on each side, the attorneys on each side, the property address, and the filing date.
Read the text directly when the file came off a computer, and read the page as an image when the file is a scan with no text in it.
Show every value it read in a form the person can edit, and wait for them to confirm it.
Say which page each value came from, so a person can check it against the paper in front of them.
What it must never do
Fill a field it could not find with a value that looks plausible.
Go on to drafting before a person has confirmed the names and the case number, because those run through every instruction in the set.
What is usually missing when you start this work?
Answer this
Part 2
Confirming the names of the parties
The name of each party appears in almost every instruction. One wrong name repeats through the whole document, and a judge or an opposing lawyer who spots it will doubt the rest of it.
What a good system does
Ask the person to confirm each party’s name as it should read in the instructions, rather than trusting the spelling in the complaint.
Ask which pronouns each party uses rather than working them out from a name.
Use the confirmed names and pronouns in every instruction, so the same party reads the same way throughout.
Keep track of which attorneys appear for which side.
What it must never do
Decide a party’s pronouns from their name.
Write a role, such as the landlord, where the instruction asks for a name, or a name where it asks for a role.
How do you decide how a party is named across a whole set of instructions?
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Part 3
Reading which instructions each side has checked
The list is a form with a printed row for each pattern instruction and a box beside it. Each side checks the boxes for the instructions it wants, and a trial can need 20 or more of them. Reading those checkmarks off the page by hand is slow, and it is easy to miss one.
What a good system does
Read the checkmarks from an image of the page, because these forms usually arrive as scans and a checkmark is not text that can be searched.
Group what it found by the page it came from, so a person can check it against the paper without hunting for it.
Let a person add an instruction the reading missed and remove one it got wrong.
Read the verdict forms as well, since they are checked on the same list and have their own numbering.
What it must never do
Leave out a checked row it could not read, because an instruction missing from the output is invisible.
Accept a faint checkmark or a crossed-out row without showing it to a person.
How often does the joint list reach you as a scan?
Answer this
Part 4
The instructions a party writes itself
The last section of the list leaves blank rows, where a party writes in an instruction it has drafted itself. Those rows have wording and no number, so there is nothing to look up and no stored wording to use. An earlier build read only the numbered rows, and a checked row with no number was dropped from the run with nothing on screen saying so.
What a good system does
Check the blank rows for a checkmark before reading any of them, so only the cases that have one pay for the extra reading.
Read what a checked blank row says and carry it forward under the name the party gave it.
Say plainly that an instruction like this has no approved wording behind it and has to be drafted and attached separately.
Keep these instructions beside the numbered ones, so a person reviewing the set sees all of it.
What it must never do
Leave out a checked row because it has no number.
Write the wording for one of these and present it as approved pattern language.
What goes into the blank rows in your cases?
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Part 5
Looking up the approved wording for each instruction
A pattern instruction is useful because a court has already approved its exact words. The system should look that wording up rather than write it, because anything it writes itself is something a lawyer will have to defend.
What a good system does
Keep the approved instructions in a library, with the full wording of each one and the blanks it contains.
Match each number on the list to the instruction stored under it, including the verdict forms with their own numbering.
List separately every number it has no stored wording for, so a person sees what is missing instead of discovering a short document later.
Reproduce the approved wording exactly, and change only what goes inside a blank.
What it must never do
Rewrite, shorten, or modernize approved wording.
Produce an instruction for a number the library does not hold.
How do you mark a change you make to the approved wording?
Answer this
Part 6
Filling in the blanks with the facts of the case
Each pattern instruction has blanks in it for names, roles, dates, and the property. Filling them in by hand takes an afternoon, and it is where the same name or date ends up written three different ways in three different instructions.
What a good system does
Fill each blank from the case details a person has already confirmed, rather than reading the file again.
Keep a description and an example for each kind of blank, so a blank that appears in many instructions is filled the same way every time.
Produce the same document from the same case and the same corrections every time it runs.
Highlight every blank it filled and every blank it left empty, and keep that highlighting in the document a person downloads.
Let a person edit any value it filled in, and keep that edit if the step runs again.
What it must never do
Fill a blank it has no source for.
Leave a blank it could not fill looking the same as one it filled.
Which blanks do you have to stop and think about?
Answer this
Part 7
Checking that every disputed issue has an instruction
Coverage means that every element of the claim and every defense in dispute has an instruction behind it. A set can read well and still be missing the one the trial turns on.
What a good system does
Keep a list connecting each defense and each element of the claim to the instructions that cover it.
Say which disputed points have no instruction in the set.
Point out any instruction in the set that does not answer anything in dispute, since a box can be checked by mistake.
Keep that list as data a person can read and correct, rather than inside a prompt.
What it must never do
Call a set complete while something in dispute has no instruction behind it.
Which defenses in an eviction trial have no pattern instruction that fits them?
Answer this
Part 8
Flagging what a lawyer has to decide
Some instructions get argued over in every trial, and any change to the approved wording draws an objection. A lawyer decides those, and the system puts them in front of one.
What a good system does
Flag every instruction the parties are likely to argue about, so a lawyer decides it before the list goes in.
Mark every change to the approved wording, so the judge and the other side can see it.
Put the blanks that are still empty in one place, so none of them reaches the court unnoticed.
Warn before the download when blanks are still empty or an instruction still needs drafting.
What it must never do
Produce a document that looks finished while something in it is unresolved.
Settle a contested instruction on its own.
Which instructions do the judges in your court fight over?
Answer this
Part 9
Producing the document and saving the work
The result is a document somebody files, so its format matters as much as its wording. The work also runs across more than one sitting, and a person who loses it has to start again.
What a good system does
Produce the instructions in the format the court expects, with each one starting on its own page.
Keep the highlighting for filled and empty blanks in the downloaded document, so the reviewer sees what was on the screen.
Save the work as the person goes, and let them name what they saved and come back to it.
Keep the person’s corrections with the saved work, so coming back does not mean making them again.
What it must never do
Lose a correction because a step ran a second time.
What gets one of these sent back by the clerk?
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Part 10
Keeping the client’s file private
The papers hold the parties’ names, the property address, the attorneys, and the case number, and the file goes to a model to be read. A supervising attorney has to be able to say where it went. An earlier build left its test documents on a web address anybody could open.
What a good system does
Let only the person who uploaded a case file, and the people meant to see it, open it.
Keep saved work visible only to the person who saved it.
Say which parts of the file go to a model and where that model runs, in words a supervising attorney can check.
Use documents with invented names and details for testing and for demonstrations.
What it must never do
Leave a real case file on a web address anyone can open.
Send more of the file to a model than the step needs.
What does your organization require before a client’s file can go through a system like this?
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Part 11
Keeping the instruction library up to date
Pattern instructions get revised. A library holding last year’s wording still produces a document that looks right, and it quotes language the court has since replaced.
What a good system does
Record which edition of the pattern instructions the library holds, and show it with the document.
Give one person the job of updating the library when the instructions are revised.
Say which instructions changed since the stored version instead of replacing the library quietly.
Let a court or an office keep a local instruction beside the approved ones, labeled as local.
What it must never do
Present wording from an old edition as the current approved language.
Who would keep the instruction library current in your office?
Answer this
Part 12
Knowing whether it works
Coverage is whether the set holds an instruction for everything in dispute. Fidelity is whether the wording matches what the court approved. Scoring either one takes a collection of cases paired with the instructions an expert would propose, and no such collection exists yet.
What a good system does
Collect real cases, rewrite them with invented names and details, and pair each one with the instructions an expert would propose.
Score coverage case by case, and count a missing instruction for a disputed point as a failed case rather than a lower average.
Score fidelity by comparing the wording produced against the approved text word for word.
Check that the same case and the same corrections still produce the same document, because a change that alters the document without anyone noticing is hard to catch any other way.
Measure the time against what the set takes to assemble by hand today.
Count what the reviewing attorney changes, and use the pattern to fix the library and the coverage list.
What would you need to see before you would file a set of instructions this produced?
Answer this
What happens to what you write
Every note comes to the Commons team. We read it, correct what this list gets wrong, and publish a new version saying what changed. The questions that need practitioners to argue them out go to the cohort for this area, which writes the detailed specification from what comes back.
A note about one line is as useful as a note that adds a whole step. If what you know is which instruction your judge always refuses, write about that.
The two agendas for this workflow
You are reading this one
Step-by-step agenda
This is the first round, and it collects what the people who do this work say a tool has to do, in the order the work happens and in plain words. Read it to argue with it, to correct it, and to say what your jurisdiction needs.
Not written yet
Functional agenda
The cohort writes the detailed specification after this round, using the answers that come back from this page. It numbers every capability, states the standard each one has to meet, and sorts them by the scope of the system being built, so a builder can build against it and an evaluator can test against it.
