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Filing # 130015057 E-Filed 07/02/2021 03:48:26 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
JOHN HUGHES, III, as Receiver of
FLICKER CONSTRUCTION, INC.,
Plaintiff,
v. CASE NO.: 2019-003916-CA-01
ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,
Defendants.
/
NOTICE OF FILING PROPOSED JURY INSTRUCTIONS AND
OBJECTIONS TO PROPOSED SPECIAL INSTRUCTIONS
Plaintiff, JOHN HUGHES, III, as Receiver of FLICKER CONSTRUCTION, INC., and
Defendant, MID-CONTINENT CASUALTY COMPANY, hereby gives notice of filing their
Proposed Jury Instructions and Objections to Proposed Special Instructions.1
Respectfully submitted on July 2, 2021, by:
/s/ Brent Steinberg /s/ Edward Sylvester
BRENT G. STEINBERG EDWARD T. SYLVESTER
Florida Bar No.: 0085453 Florida Bar No.: 51612
SWOPE, RODANTE P.A. HINSHAW & CULBERTSON LLP
1234 E. 5th Avenue 2525 Ponce de Leon Boulevard, 4th Floor
Tampa, FL 33605 Coral Gables, FL 33134
Tel: (813) 273-0017 Tel: 305-358-7747
Fax: (813) 223-3678 Fax: 305-577-1063
Team2eservice@swopelaw.com esylvester@hinshawlaw.com
Appeals@swopelaw.com Attorney for Defendant
Attorneys for Plaintiff
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Each party may seek to revise their respective proposed special instructions after the Court rules
on the pending dispositive motions and motions in limine.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically
filed and furnished by e-mail to Edward T. Sylvester, esylvester@hinshawlaw.com,
lleon@hinshawlaw.com, and kcongdon@hinshawlaw.com, Hinshaw & Culbertson, LLP, 2525
Ponce de Leon Boulevard, 4th Floor, Coral Gables, Florida 33134, on this 2nd day of July, 2021.
/s/ Brent Steinberg
BRENT G. STEINBERG
Florida Bar No.: 0085453
SWOPE, RODANTE P.A.
1234 E. 5th Avenue
Tampa, FL 33605
Tel: (813) 273-0017
Fax: (813) 223-3678
Team2eservice@swopelaw.com
Appeals@swopelaw.com
Attorneys for Plaintiff
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PRELIMINARY INSTRUCTIONS
1. QUALIFICATIONS INSTRUCTION
DURING JURY SELECTION
2. 201.1 DESCRIPTION OF THE CASE
3. 201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES
4. 201.3 EXPLANATION OF THE VOIR DIRE PROCESS
AFTER JURY SELECTED AND SWORN
5. 202.1 INTRODUCTION
6. 202.2 EXPLANATION OF THE TRIAL PROCEDURE
7. 202.3 NOTE-TAKING BY JURORS
8. 202.4 JUROR QUESTIONS
9. 202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/
INTERPRETATION
SUBSTANTIVE INSTRUCTIONS
10. PLAINTIFF’S PROPOSED STATUS AS RECEIVER
11. PLAINTIFF’S PROPOSED SUMMARY OF CLAIMS
12. PLAINTIFF’S PROPOSED 401.3 GREATER WEIGHT OF THE EVIDENCE
13. PLAINTIFF’S PROPOSED BREACH OF DUTY TO DEFEND
14. PLAINTIFF’S PROPOSED DAMAGES FOR BREACH OF DUTY TO DEFEND
15. PLAINTIFF’S PROPOSED 401.4 NEGLIGENCE
16. PLAINTIFF’S PROPOSED 401.12 LEGAL CAUSE
17. PLAINTIFF’S PROPOSED BURDEN OF PROOF ON INJURY CLAIM
18. PLAINTIFF’S PROPOSED DEFENSE ISSUES ON INJURY CLAIM
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19. PLAINTIFF’S PROPOSED BURDEN OF PROOF OF DEFENSE ISSUES ON INJURY
CLAIM
20. PLAINTIFF’S PROPOSED PERSONAL INJURY DAMAGES
21. PLAINTIFF’S PROPOSED JUDGMENTS
22. PLAINTIFF’S PROPOSED COVERAGE ISSUE
23. PLAINTIFF’S PROPOSED STATUTORY EMPLOYER
******************************************************************************
10. DEFENDANT’S PROPOSED DESCRIPTION OF THE CASE
11. DEFENDANT’S PROPOSED RESPONSIBILITY FOR PROOF – PREPONDERANCE OF
THE EVIDENCE
12. DEFENDANT’S PROPOSED STATUTORY EMPLOYEES
13. DEFENDANT’S PROPOSED INSURANCE POLICY EXCLUSIONS (EMPLOYER'S
LIABILITY)
14. DEFENDANT’S PROPOSED INSURANCE POLICY EXCLUSIONS (WORKERS'
COMPENSATION)
15. DEFENDANT’S PROPOSED CONTRACT IMPLIED IN FACT
16. DEFENDANT’S PROPOSED ORAL CONTRACTS
******************************************************************************
24. 601.1 WEIGHING THE EVIDENCE
25. 601.2 BELIEVABILITY OF THE WITNESSES
26. 601.3 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/
INTERPRETATION
27. 601.5 CONCLUDING INSTRUCTION (BEFORE FINAL ARGUMENT)
CLOSING INSTRUCTIONS
28. 700 CLOSING INSTRUCTIONS
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JURY INSTRUCTION NO.1
QUALIFICATIONS INSTRUCTION
Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops.
Even though you have not yet been selected as a juror, there are some strict rules that you must
follow about electronic devices.
When you are called to a courtroom, the judge will give you specific instructions on the
use of electronic devices. These rules are so important that the judge may tell you that you must
turn off your cell phone or other electronic devices completely or that you cannot have your cell
phone or electronic devices in the courtroom. If someone needs to contact you in case of an
emergency, the judge will provide you with a phone number where you can receive messages.
If the trial judge allows you to keep your cell phones, computers, or other electronic
devices, you cannot use them to take photographs, video recordings, or audio recordings of the
proceedings in the courtroom or your fellow jurors. You must not use them to search the Internet
or to find out anything related to any cases in the courthouse.
Why is this restriction imposed? This restriction is imposed because jurors must decide
the case without distraction and only on the evidence presented in the courtroom. I know that, for
some of you, these restrictions affect your normal daily activities and may require a change in the
way you are used to communicating and perhaps even in the way you are used to learning.
If you investigate, research, or make inquiries on your own, the trial judge has no way to
make sure that the information you obtain is proper for the case. The parties likewise have no
opportunity to dispute or challenge the accuracy of what you find. Any independent investigation
by a juror unfairly and improperly prevents the parties from having that opportunity our judicial
system promises.
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Between now and when you have been discharged from jury duty by the judge, you must
not discuss any information about your jury service with anyone, including friends, co-workers,
and family members. You may tell those who need to know where you are that you have been
called for jury duty. If you are picked for a jury, you may tell people that you have been picked for
a jury and how long the case may take. However, you must not give anyone any information about
the case itself or the people involved in the case. You must also warn people not to try to say
anything to you or write to you about your jury service or the case. This includes face-to-face,
phone or computer communications.
I want to stress that you must not use electronic devices or computers to talk about this
case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat
room, or any other means at all. Do not send or accept any messages, including e-mail and text
messages, about your jury service. You must not disclose your thoughts about your jury service or
ask for advice on how to decide any case.
The judge will tell you when you are released from this instruction. Remember, these rules
are designed to guarantee a fair trial. It is important that you understand the rules as well as the
impact on our system of justice if you fail to follow them. If it is determined that any one of you
has violated this rule, and conducted any type of independent research or investigation, it may
result in a mistrial. A mistrial would require the case to be tried again at great expense to the
parties and the judicial system. The judge may also impose a penalty upon any juror who violates
this instruction. All of us are depending on you to follow these rules, so that there will be a fair
and lawful resolution of every case.
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JURY INSTRUCTION NO.2
201.1 DESCRIPTION OF THE CASE
Welcome. I will now administer your oath: Do you solemnly swear or affirm that you
will answer truthfully all questions asked of you as prospective jurors?
Now that you have been sworn, I’d like to give you an idea about what we are here to do.
This is a civil trial. A civil trial is different from a criminal case, where a defendant is
charged by the state prosecutor with committing a crime. The subject of a civil trial is a
disagreement between people or companies, where the claims of one or more of these parties have
been brought to court to be resolved. It is called “a trial of a lawsuit.”
Plaintiff’s proposed language:
The Plaintiff is John Hughes, III, who is serving as the Receiver of Flicker Construction,
Inc. The Plaintiff is bringing Flicker Construction’s claims against its insurance company,
Defendant, Mid-Continent Casualty Company, Inc. (“MCC”).
Flicker Construction was sued by Manuel Perea, who was injured on a jobsite on
September 6, 2010. MCC was required to defend Flicker Construction from that lawsuit but did
not do so. The jury returned a verdict in favor of Mr. Perea, and final judgments were entered
against Flicker Construction totaling $641,258.44, plus interest.
Plaintiff claims MCC breached its duty to defend Flicker Construction from the Perea
lawsuit, and that had MCC properly defended Flicker Construction, the final judgments against it
would have been lower or not entered at all. MCC denies those claims.
Plaintiff also claims that Flicker Construction’s insurance policy with MCC provides
coverage for Flicker Construction’s legal liability to Manuel Perea. MCC denies those allegations
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because it claims that exclusions in the policy eliminate coverage for Mr. Perea’s claim. Plaintiff
denies that the exclusions apply.
Defendant’s objection:
MCC objects to Plaintiff’s inclusion of the amount of the judgments against Flicker
Construction found in the second paragraph (which is the subject of MCC’s incorporated motion
in limine, and it is irrelevant and prejudicial).
Regarding paragraph 3, MCC objects to it in its entirety. Only if the Court rules that MCC
breached the duty to defend, and only if the court permits evidence of consequential damages (of
which MCC argues there are none in its incorporated motion in limine). Bad faith damages cannot
be argued because the Florida Supreme Court has long required two conditions be met before a
bad faith claim under §624.155 can be asserted: (1) there must be a determination of liability under
the policy, and (2) the amount of damages owed on the contract must be decided. Vest v. Travelers
Ins. Co., 753 So.2d 1270, 1276 (Fla. 2000). Neither of these has occurred, and it can only occur at
the conclusion of the trial and final judgment (assuming things fall Plaintiff’s direction). Put
differently, “[w]hen a plaintiff does not and cannot allege that there has been a final determination
of both the insurer’s liability and the amount of damages owed by the insurer, the plaintiff’s bad
faith claim is premature.” Lime Bay Condo. Inc. v. State Farm Fla. Ins. Co., 94 So. 3d 698, 699
(Fla. 4th DCA 2012). The Supreme Court has also enunciated, “it is necessary for a plaintiff to
allege that a determination has been made with regard to ‘the existence of liability’” – absent such
a determination a bad faith cause of action “cannot exist.’” Dadeland Depot, Inc. v. St. Paul Fire
& Marine Ins. Co., 945 So. 2d 1216, 1234 (Fla. 2006) (discussing in the third-party context); see
also Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991) ("Absent a
determination of the existence of liability on the part of the uninsured tortfeasor and the extent of
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the plaintiff's damages, a cause of action cannot exist for a bad faith failure to settle.”) (e.s.);
Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA 2010) (recognizing bad faith is a
“separate and distinct cause of action” that does not accrue until original action is completed); and
Old Republic Nat. Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So. 2d 818, 819 (Fla. 5th DCA
2003) (recognizing general rule that both issues must be resolved before bad faith is ripe).
While reasonableness of the amount of the judgment is permitted, if the Court finds the
amount of the judgment unreasonable, then MCC is responsible for $0.00. See Steil v. Fla.
Physicians' Ins. Reciprocal, 448 So.2d 589, 592 (Fla. 2d DCA 1984) (A settlement or judgment
can only be assumed realistic “[i]n a situation where the insured actually pays for the settlement
of the claim against him or where the case is fully litigated at trial before the entry of a judgment
. . . .” id. at 592); and Mid-Continent Cas. Co. v. American Pride Bldg. Co., LLC, 534 Fed. Appx.
926, 928 (11th Cir. 2013) (“[i]n Florida, it is, as Mid–Continent contends, an all or nothing
proposition.”)
There is simply no law to support that a jury can award speculative damages. See
Commercial Ins. Consultants, Inc. v. Frenz Enterprises, Inc., 696 So.2d 871, 873 (Fla. 5th DCA
1997) Additionally, the use of the word “properly” implies the jury will be considering MCC’s
handling of the matter. That is premature bad faith argument that is the subject of MCC’s motion
in limine and the case law cited above.
As it respects the fourth paragraph, MCC objects to the use of the word “legal” liability.
Simply put, Plaintiff seeks indemnification under the MCC policy for the amount of the final
judgment. Referencing any other “liability to Manuel Perea” is improper and prejudicial to MCC.
MCC also objects to any testimony by Mr. Diamond that concerns the damages, liability,
defense, etc. which is the subject of the motions of limine or subject of MCC’s above-described
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objections. Simply put, this case is solely about insurance coverage for the underlying final
judgment. MCC’s handling of the file—even if the court rules that MCC should have provided a
defense—is wholly improper.
As described, it is MCC’s position that Flicker Construction suffered no damages from the
alleged breach, that speculation about a final judgment is improper, discussion of claim handling
is improper, discussion of the amount, or extent, of Mr. Perea’s damages is improper. See above
case law regarding bad faith damage.
Defendant’s proposed language:
To help you follow the evidence, I'll summarize the parties' positions. The Defendant, Mid-
Continent Casualty Company, contends that Flicker Construction, Inc. ("Flicker") was the general
contractor for the jobsite on which Manuel Perea ("Mr. Perea") was injured. Defendant contends
Mr. Perea was a statutory employee of Flicker Construction, Inc. ("Flicker"); that is, Mr. Perea's
injury arose out of or in the course of work he was performing under the construction permit
obtained by Flicker Construction. As a result, Mid-Continent Casualty Company contends that
coverage for Mr. Perea's injuries is excluded under the Workers’ Compensation and Employer’s
Liability exclusions of the Mid-Continent insurance policy issued to Flicker. The Plaintiff denies
that Mr. Perea was a statutory employee of Flicker and denies that coverage is barred by the
Workers’ Compensation and Employer’s Liability exclusions of the Mid-Continent insurance
policy.
Plaintiff’s objection:
Defendant’s proposed language omits Plaintiff’s claim for breach of duty to defend, as pled
in Count V of the Complaint. The Court has already determined that MCC owed a duty to defend
Flicker Construction from the lawsuit filed against itby Manuel Perea, and there is a pending
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motion for partial summary judgment seeking a determination that MCC breached that duty by not
defending. Plaintiff is entitled to seek the damages naturally resulting from the breach of duty to
defend. See MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So. 2d 1114, 1116 (Fla.
3d DCA 1997) (holding that in a breach of duty to defend case, the insurer is liable for “all damages
that flow naturally from the breach,” not just the amount of any attorneys’ fees incurred); Carrousel
Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513, 516 (Fla. 3d DCA 1986) (“If the
insurer breaches its duty to defend, it—like any other party who fails to perform its contractual
obligations—becomes liable for all damages naturally flowing from the breach.”).
Additionally, the only factual issue for the jury to decide on the breach of the duty to
indemnify is whether Flicker Construction was the statutory employer of Manuel Perea.
Defendant’s description of the law on that issue is inaccurate. The fact that a company is listed as
a general contractor on the building permit does not, standing alone, make that company a statutory
employer for every person who works on the project. Plaintiff incorporates by reference Plaintiff’s
Response (dated May 12, 2021) and Surreply (dated June 17, 2021) to Defendant’s “renewed
cross-motion for summary judgment on the duty to indemnify.”
Finally, the parties agree that the Workers’ Compensation and Employer’s Liability
exclusions apply if Flicker Construction was the statutory employer of Mr. Perea. Introducing
instructions related to those exclusions will only needlessly complicate the issues and potentially
confuse the jury on the issues to be decided. See § 90.403, Fla. Stat.
Agreed language:
The principal witnesses who may testify in this case are:
John Hughes, III, attorney at McLuskey, McDonald & Hughes, P.A.
Michael Brader, as Corporate Representative of Mid-Continent Casualty Company
Roman Flicker of Flicker Construction, Inc.
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Jose Raphael Jimenez of Century Wide Remodeling, Inc.
Moises Tacle of CV-CHES Corp., d/b/a Kosta Seafood & More…
Karina Baquerizo of CV-CHES Corp., d/b/a Kosta Seafood & More…
Manuel Perea
Joshua Diamond, attorney at Florida Insurance Claims Attorney Advocates, P.A.
Lewis Andrews, of Lewis Andrews Accounting
Jose Baluja, as Corporate Representative of Universal Hood Tech
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JURY INSTRUCTION NO.3
201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES
Who are the people here and what do they do?
Judge/Court: I am the Judge. You may hear people occasionally refer to me as “The
Court.” That is the formal name for my role. My job is to maintain order and decide how to apply
the rules of the law to the trial. I will also explain various rules to you that you will need to know
in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit.
Parties: A party who files a lawsuit is called the Plaintiff. A party that is sued is called the
Defendant.
Attorneys: The attorneys have the job of representing their clients. That means they speak
for their client here at the trial. They have taken oaths as attorneys to do their best and to follow
the rules for their profession.
Plaintiff’s Counsel: The attorneys on this side of the courtroom, Brandon Cathey and
Brent Steinberg, represent the Plaintiff, John Hughes, III, as receiver of Flicker Construction, Inc.,
and are the people who filed the lawsuit here at the courthouse. Their job is to present their client’s
side of things to you. They and their client will be referred to most of the time as “the plaintiff.”
Mr. Cathey, will you please introduce yourself and the people sitting at the table with you?
Defendant’s Counsel: The attorney on this side of the courtroom, Ed Sylvester and
________, represents the Defendant, Mid-Continent Casualty Insurance Company, who has been
sued. Their job is to present their client’s side of things to you. They and their client will usually
be referred to here as “the defendant.” Mr. Sylvester, will you please introduce yourself and the
people sitting at the table with you?
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Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is
here to assist me with some of the mechanics of the trial process, including the numbering and
collection of the exhibits that are introduced in the course of the trial.
Court Reporter: The person sitting at the stenographic machine, (name), is the court
reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during
this trial.
Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order
and security in the courtroom. The bailiff is also my representative to the jury. Anything you need
or any problems that come up for you during the course of the trial should be brought to [him]
[her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that.
Jury: Last, but not least, is the jury, which we will begin to select in a few moments from
among all of you. The jury’s job will be to decide what the facts are and what the facts mean.
Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit.
In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic
rule is that jurors must decide the case only on the evidence presented in the courtroom. You must
not communicate with anyone, including friends and family members, about this case, the people
and places involved, or your jury service. You must not disclose your thoughts about this case or
ask for advice on how to decide this case.
I want to stress that this rule means you must not use electronic devices or computers to
communicate about this case, including tweeting, texting, blogging, e-mailing, posting information
on a website or chat room, or any other means at all. Do not send or accept any messages to or
from anyone about this case or your jury service.
You must not do any research or look up words, names, maps, or anything else that may
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have anything to do with this case. This includes reading newspapers, watching television or using
a computer, cell phone, the Internet, any electronic device, or any other means at all, to get
information related to this case or the people and places involved in this case. This applies whether
you are in the courthouse, at home, or anywhere else.
Many of you may have cell phones, tablets, laptops, or other electronic devices with you
here in the courtroom.
All cell phones, computers, tablets, or other types of electronic devices must be turned off
while you are in the courtroom. Turned off means that the phone or other electronic device is
actually off and not in a silent or vibrating mode. You may use these devices during recesses, but
even then you may not use your cell phone or electronic device to find out any information about
the case or communicate with anyone about the case or the people involved in the case. Do not
take photographs, video recordings, or audio recordings of the proceedings or of your fellow jurors.
After each recess, please double check to make sure your cell phone or electronic device is turned
off. At the end of the case, while you are deliberating, you must not communicate with anyone
outside the jury room. You cannot have in the jury room any cell phones, computers, or other
electronic devices. If someone needs to contact you in an emergency, the court can receive
messages and deliver them to you without delay. A contact phone number will be provided to you.
What are the reasons for these rules? These rules are imposed because jurors must decide
the case without distraction and only on the evidence presented in the courtroom. If you
investigate, research, or make inquiries on your own outside of the courtroom, the trial judge has
no way to make sure that the information you obtain is proper for the case. The parties likewise
have no opportunity to dispute or challenge the accuracy of what you find. That is contrary to our
judicial system, which assures every party the right to ask questions about and challenge the
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evidence being considered against it and to present argument with respect to that evidence. Any
independent investigation by a juror unfairly and improperly prevents the parties from having that
opportunity our judicial system promises.
Any juror who violates these restrictions jeopardizes the fairness of these proceedings, and
a mistrial could result that would require the entire trial process to start over. A mistrial is a
tremendous expense and inconvenience to the parties, the court, and the taxpayers. If you violate
these rules, you may be held in contempt of court, and face sanctions, such as serving time in jail,
paying a fine or both.
All of your communications with courtroom personnel, or me, will be part of the record of
these proceedings. That means those communications shall either be made in open court with the
court reporter present or, if they are in writing, the writing will be filed with the court clerk. This
means, if you are outside the courtroom, any communication with me must be in writing, unsigned,
and handed directly to the bailiff. Do not share the content of the writing with anyone, including
other jurors. I have instructed the courtroom personnel that any communications you have with
them outside of my presence must be reported to me, and I will tell the parties and their attorneys
about any communication from you that I believe may be of interest to the parties and their
attorneys.
However, you may communicate directly with courtroom personnel about matters
concerning your comfort and safety, such as juror parking, location of break areas, how and when
to assemble for duty, how to dress, and what personal items can be brought into the courthouse or
jury room.
If you become aware of any violation of these instructions or any other instruction I give
in this case, you must tell me by giving a note to the bailiff.
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JURY INSTRUCTION NO.4
201.3 EXPLANATION OF THE VOIR DIRE PROCESS
Voir Dire:
The last thing I want to do, before we begin to select the jury, is to explain to you how the
selection process works.
Questions/Challenges: This is the part of the case where the parties and their lawyers have
the opportunity to get to know a littlebit about you, in order to help them come to their own
conclusions about your ability to be fair and impartial, so they can decide who they think should
be the jurors in this case.
How we go about that is as follows: First, I’ll ask some general questions of you. Then,
each of the lawyers will have more specific questions that they will ask of you. After they have
asked all of their questions, I will meet with them and they will tell me their choices for jurors.
Each side can ask that I exclude a person from serving on a jury if they can give me a reason to
believe that he or she might be unable to be fair and impartial. That is what is called a challenge
for cause. The lawyers also have a certain number of what are called peremptory challenges, by
which they may exclude a person from the jury without giving a reason. By this process of
elimination, the remaining persons are selected as the jury. It may take more than one conference
among the parties, their attorneys, and me before the final selections are made.
Purpose of Questioning: The questions that you will be asked during this process are not
intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that
the parties and their attorneys know enough about you to make this important decision. If a
question is asked that you would prefer not to answer in front of the whole courtroom, just let me
know and you can come up here and give your answer just in front of the attorneys and me. If you
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have a question of either the attorneys or me, don’t hesitate to let me know.
Response to Questioning: There are no right or wrong answers to the questions that will
be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly
and as completely as you can. You [will take] [have taken] an oath to answer all questions
truthfully and completely and you must do so. Remaining silent when you have information you
should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result
in having to try the case all over again but also can result in civil and criminal penalties against a
juror personally. So, again, itis very important that you be as honest and complete with your
answers as you possibly can. If you don’t understand the question, please raise your hand and ask
for an explanation or clarification.
In the process of selecting the jury, some of the lawyers’ questions may be meant to help
them anticipate if your beliefs, experiences, or attitudes might make it difficult for you to apply
the rules of law. Jurors take an oath to follow the law. After the jury is chosen and sworn in, I will
instruct the jury on the rules they must follow in deciding this case. It is important for you to
remember that it will not be the jury’s job to decide what the law ought to be Rather, the jury is to
determine what the facts are, then apply the law to those facts, using the court’s instructions on the
rules of law to apply—which will be fully given to the jury at the appropriate time.
In sum, this is a process to assist the parties and their attorneys to select a fair and impartial
jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you
can be a fair and impartial juror, you must tell us.
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JURY INSTRUCTION NO.5
202.1 INTRODUCTION
Administer Oath: Do you solemnly swear or affirm that you will well and truly try this
case between the Plaintiff and Defendant, and a true verdict render according to the law and
evidence?
You have now taken an oath to serve as jurors in this trial. Before we begin, I am going to
tell you about the rules of law that apply to this case and let you know what you can expect as the
trial proceeds.
It is my intention to give you most of the rules of law but it might be that I will not know for
sure all of the law that will apply in this case until all of the evidence is presented. However, I can
anticipate most of the law and give it to you at the beginning of the trial so that you will better
understand what to be looking for while the evidence is presented. If I later decide that different
or additional law applies to the case, I will tell you. In any event, at the end of the evidence I will
give you the final instructions on which you must base your verdict. At that time, you will have a
complete written set of the instructions so you do not have to memorize what I am about to tell
you.
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JURY INSTRUCTION NO.6
202.2 EXPLANATION OF THE TRIAL PROCEDURE
Now that you have heard the law, I want to let you know what you can expect as the trial
proceeds.
Opening Statements: In a few moments, the attorneys will each have a chance to make
what are called opening statements. In an opening statement, an attorney is allowed to give you
his views about what the evidence will be in the trial and what you are likely to see and hear in the
testimony.
Evidentiary Phase: After the attorneys’ opening statements the plaintiffs will bring their
witnesses and evidence to you.
Evidence: Evidence is the information that the law allows you to see or hear in deciding
this case. Evidence includes the testimony of the witnesses, documents, and anything else that I
instruct you to consider.
Witnesses: A witness is a person who takes an oath to tell the truth and then answers
attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called
“giving testimony.” Testimony means statements that are made when someone has sworn an oath
to tell the truth.
The plaintiff’s lawyer will normally ask a witness the questions first. That is called direct
examination. Then the defense lawyer may ask the same witness additional questions about
whatever the witness has testified to. That is called cross-examination. Certain documents or other
evidence may also be shown to you during direct or cross-examination. After the plaintiff’s
witnesses have testified, the Defendants will have the opportunity to put witnesses on the stand
and go through the same process. Then the plaintiff’s lawyer gets to do cross-examination. The
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process is designed to be fair to both sides.
It is important that you remember that testimony comes from witnesses. The attorneys do
not give testimony and they are not themselves witnesses.
Objections: Sometimes the attorneys will disagree about the rules for trial procedure when
a question is asked of a witness. When that happens, one of the lawyers may make what is called
an “objection.” The rules for a trial can be complicated, and there are many reasons for attorneys
to object. You should simply wait for me to decide how to proceed. If I say that an objection is
“sustained,” that means the witness may not answer the question. If I say that the objection is
“overruled,” that means the witness may answer the question.
When there is an objection and I make a decision, you must not assume from that decision
that I have any particular opinion other than that the rules for conducting a trial are being correctly
followed. If I say a question may not be asked or answered, you must not try to guess what the
answer would have been. That is against the rules, too.
Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal
elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to
have as few of these conferences as possible while you are giving us your valuable time in the
courtroom. But, if we do have to have such a conference during testimony, we will try to hold the
conference at the side of my desk so that we do not have to take a break and ask you to leave the
courtroom.
Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you still
have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at
home.
Instructions Before Closing Arguments: After all the evidence has been presented to
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you, I will instruct you in the law that you must follow. It is important that you remember these
instructions to assist you in evaluating the final attorney presentations, which come next, and, later,
during your deliberations, to help you correctly sort through the evidence to reach your decision.
Closing Arguments: The attorneys will then have the opportunity to make their final
presentations to you, which are called closing arguments.
Final Instructions: After you have heard the closing arguments, I will instruct you further
in the law as well as explain to you the procedures you must follow to decide the case.
Deliberations: After you hear the final jury instructions, you will go to the jury room and
discuss and decide the questions I have put on your verdict form. You will have a copy of the jury
Preview
Filing # 130015057 E-Filed 07/02/2021 03:48:26 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA JOHN HUGHES, III, as Receiver of FLICKER CONSTRUCTION, INC., Plaintiff, v. CASE NO.: 2019-003916-CA-01 ROMAN FLICKER and MID-CONTINENT CASUALTY COMPANY, Defendants. / NOTICE OF FILING PROPOSED JURY INSTRUCTIONS AND OBJECTIONS TO PROPOSED SPECIAL INSTRUCTIONS Plaintiff, JOHN HUGHES, III, as Receiver of FLICKER CONSTRUCTION, INC., and Defendant, MID-CONTINENT CASUALTY COMPANY, hereby gives notice of filing their Proposed Jury Instructions and Objections to Proposed Special Instructions.1 Respectfully submitted on July 2, 2021, by: /s/ Brent Steinberg /s/ Edward Sylvester BRENT G. STEINBERG EDWARD T. SYLVESTER Florida Bar No.: 0085453 Florida Bar No.: 51612 SWOPE, RODANTE P.A. HINSHAW & CULBERTSON LLP 1234 E. 5th Avenue 2525 Ponce de Leon Boulevard, 4th Floor Tampa, FL 33605 Coral Gables, FL 33134 Tel: (813) 273-0017 Tel: 305-358-7747 Fax: (813) 223-3678 Fax: 305-577-1063 Team2eservice@swopelaw.com esylvester@hinshawlaw.com Appeals@swopelaw.com Attorney for Defendant Attorneys for Plaintiff 1 Each party may seek to revise their respective proposed special instructions after the Court rules on the pending dispositive motions and motions in limine. 1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed and furnished by e-mail to Edward T. Sylvester, esylvester@hinshawlaw.com, lleon@hinshawlaw.com, and kcongdon@hinshawlaw.com, Hinshaw & Culbertson, LLP, 2525 Ponce de Leon Boulevard, 4th Floor, Coral Gables, Florida 33134, on this 2nd day of July, 2021. /s/ Brent Steinberg BRENT G. STEINBERG Florida Bar No.: 0085453 SWOPE, RODANTE P.A. 1234 E. 5th Avenue Tampa, FL 33605 Tel: (813) 273-0017 Fax: (813) 223-3678 Team2eservice@swopelaw.com Appeals@swopelaw.com Attorneys for Plaintiff 2 PRELIMINARY INSTRUCTIONS 1. QUALIFICATIONS INSTRUCTION DURING JURY SELECTION 2. 201.1 DESCRIPTION OF THE CASE 3. 201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES 4. 201.3 EXPLANATION OF THE VOIR DIRE PROCESS AFTER JURY SELECTED AND SWORN 5. 202.1 INTRODUCTION 6. 202.2 EXPLANATION OF THE TRIAL PROCEDURE 7. 202.3 NOTE-TAKING BY JURORS 8. 202.4 JUROR QUESTIONS 9. 202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/ INTERPRETATION SUBSTANTIVE INSTRUCTIONS 10. PLAINTIFF’S PROPOSED STATUS AS RECEIVER 11. PLAINTIFF’S PROPOSED SUMMARY OF CLAIMS 12. PLAINTIFF’S PROPOSED 401.3 GREATER WEIGHT OF THE EVIDENCE 13. PLAINTIFF’S PROPOSED BREACH OF DUTY TO DEFEND 14. PLAINTIFF’S PROPOSED DAMAGES FOR BREACH OF DUTY TO DEFEND 15. PLAINTIFF’S PROPOSED 401.4 NEGLIGENCE 16. PLAINTIFF’S PROPOSED 401.12 LEGAL CAUSE 17. PLAINTIFF’S PROPOSED BURDEN OF PROOF ON INJURY CLAIM 18. PLAINTIFF’S PROPOSED DEFENSE ISSUES ON INJURY CLAIM 3 19. PLAINTIFF’S PROPOSED BURDEN OF PROOF OF DEFENSE ISSUES ON INJURY CLAIM 20. PLAINTIFF’S PROPOSED PERSONAL INJURY DAMAGES 21. PLAINTIFF’S PROPOSED JUDGMENTS 22. PLAINTIFF’S PROPOSED COVERAGE ISSUE 23. PLAINTIFF’S PROPOSED STATUTORY EMPLOYER ****************************************************************************** 10. DEFENDANT’S PROPOSED DESCRIPTION OF THE CASE 11. DEFENDANT’S PROPOSED RESPONSIBILITY FOR PROOF – PREPONDERANCE OF THE EVIDENCE 12. DEFENDANT’S PROPOSED STATUTORY EMPLOYEES 13. DEFENDANT’S PROPOSED INSURANCE POLICY EXCLUSIONS (EMPLOYER'S LIABILITY) 14. DEFENDANT’S PROPOSED INSURANCE POLICY EXCLUSIONS (WORKERS' COMPENSATION) 15. DEFENDANT’S PROPOSED CONTRACT IMPLIED IN FACT 16. DEFENDANT’S PROPOSED ORAL CONTRACTS ****************************************************************************** 24. 601.1 WEIGHING THE EVIDENCE 25. 601.2 BELIEVABILITY OF THE WITNESSES 26. 601.3 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/ INTERPRETATION 27. 601.5 CONCLUDING INSTRUCTION (BEFORE FINAL ARGUMENT) CLOSING INSTRUCTIONS 28. 700 CLOSING INSTRUCTIONS 4 JURY INSTRUCTION NO.1 QUALIFICATIONS INSTRUCTION Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about electronic devices. When you are called to a courtroom, the judge will give you specific instructions on the use of electronic devices. These rules are so important that the judge may tell you that you must turn off your cell phone or other electronic devices completely or that you cannot have your cell phone or electronic devices in the courtroom. If someone needs to contact you in case of an emergency, the judge will provide you with a phone number where you can receive messages. If the trial judge allows you to keep your cell phones, computers, or other electronic devices, you cannot use them to take photographs, video recordings, or audio recordings of the proceedings in the courtroom or your fellow jurors. You must not use them to search the Internet or to find out anything related to any cases in the courthouse. Why is this restriction imposed? This restriction is imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom. I know that, for some of you, these restrictions affect your normal daily activities and may require a change in the way you are used to communicating and perhaps even in the way you are used to learning. If you investigate, research, or make inquiries on your own, the trial judge has no way to make sure that the information you obtain is proper for the case. The parties likewise have no opportunity to dispute or challenge the accuracy of what you find. Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises. 5 Between now and when you have been discharged from jury duty by the judge, you must not discuss any information about your jury service with anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications. I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case. The judge will tell you when you are released from this instruction. Remember, these rules are designed to guarantee a fair trial. It is important that you understand the rules as well as the impact on our system of justice if you fail to follow them. If it is determined that any one of you has violated this rule, and conducted any type of independent research or investigation, it may result in a mistrial. A mistrial would require the case to be tried again at great expense to the parties and the judicial system. The judge may also impose a penalty upon any juror who violates this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case. 6 JURY INSTRUCTION NO.2 201.1 DESCRIPTION OF THE CASE Welcome. I will now administer your oath: Do you solemnly swear or affirm that you will answer truthfully all questions asked of you as prospective jurors? Now that you have been sworn, I’d like to give you an idea about what we are here to do. This is a civil trial. A civil trial is different from a criminal case, where a defendant is charged by the state prosecutor with committing a crime. The subject of a civil trial is a disagreement between people or companies, where the claims of one or more of these parties have been brought to court to be resolved. It is called “a trial of a lawsuit.” Plaintiff’s proposed language: The Plaintiff is John Hughes, III, who is serving as the Receiver of Flicker Construction, Inc. The Plaintiff is bringing Flicker Construction’s claims against its insurance company, Defendant, Mid-Continent Casualty Company, Inc. (“MCC”). Flicker Construction was sued by Manuel Perea, who was injured on a jobsite on September 6, 2010. MCC was required to defend Flicker Construction from that lawsuit but did not do so. The jury returned a verdict in favor of Mr. Perea, and final judgments were entered against Flicker Construction totaling $641,258.44, plus interest. Plaintiff claims MCC breached its duty to defend Flicker Construction from the Perea lawsuit, and that had MCC properly defended Flicker Construction, the final judgments against it would have been lower or not entered at all. MCC denies those claims. Plaintiff also claims that Flicker Construction’s insurance policy with MCC provides coverage for Flicker Construction’s legal liability to Manuel Perea. MCC denies those allegations 7 because it claims that exclusions in the policy eliminate coverage for Mr. Perea’s claim. Plaintiff denies that the exclusions apply. Defendant’s objection: MCC objects to Plaintiff’s inclusion of the amount of the judgments against Flicker Construction found in the second paragraph (which is the subject of MCC’s incorporated motion in limine, and it is irrelevant and prejudicial). Regarding paragraph 3, MCC objects to it in its entirety. Only if the Court rules that MCC breached the duty to defend, and only if the court permits evidence of consequential damages (of which MCC argues there are none in its incorporated motion in limine). Bad faith damages cannot be argued because the Florida Supreme Court has long required two conditions be met before a bad faith claim under §624.155 can be asserted: (1) there must be a determination of liability under the policy, and (2) the amount of damages owed on the contract must be decided. Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla. 2000). Neither of these has occurred, and it can only occur at the conclusion of the trial and final judgment (assuming things fall Plaintiff’s direction). Put differently, “[w]hen a plaintiff does not and cannot allege that there has been a final determination of both the insurer’s liability and the amount of damages owed by the insurer, the plaintiff’s bad faith claim is premature.” Lime Bay Condo. Inc. v. State Farm Fla. Ins. Co., 94 So. 3d 698, 699 (Fla. 4th DCA 2012). The Supreme Court has also enunciated, “it is necessary for a plaintiff to allege that a determination has been made with regard to ‘the existence of liability’” – absent such a determination a bad faith cause of action “cannot exist.’” Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1234 (Fla. 2006) (discussing in the third-party context); see also Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991) ("Absent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of 8 the plaintiff's damages, a cause of action cannot exist for a bad faith failure to settle.”) (e.s.); Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA 2010) (recognizing bad faith is a “separate and distinct cause of action” that does not accrue until original action is completed); and Old Republic Nat. Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So. 2d 818, 819 (Fla. 5th DCA 2003) (recognizing general rule that both issues must be resolved before bad faith is ripe). While reasonableness of the amount of the judgment is permitted, if the Court finds the amount of the judgment unreasonable, then MCC is responsible for $0.00. See Steil v. Fla. Physicians' Ins. Reciprocal, 448 So.2d 589, 592 (Fla. 2d DCA 1984) (A settlement or judgment can only be assumed realistic “[i]n a situation where the insured actually pays for the settlement of the claim against him or where the case is fully litigated at trial before the entry of a judgment . . . .” id. at 592); and Mid-Continent Cas. Co. v. American Pride Bldg. Co., LLC, 534 Fed. Appx. 926, 928 (11th Cir. 2013) (“[i]n Florida, it is, as Mid–Continent contends, an all or nothing proposition.”) There is simply no law to support that a jury can award speculative damages. See Commercial Ins. Consultants, Inc. v. Frenz Enterprises, Inc., 696 So.2d 871, 873 (Fla. 5th DCA 1997) Additionally, the use of the word “properly” implies the jury will be considering MCC’s handling of the matter. That is premature bad faith argument that is the subject of MCC’s motion in limine and the case law cited above. As it respects the fourth paragraph, MCC objects to the use of the word “legal” liability. Simply put, Plaintiff seeks indemnification under the MCC policy for the amount of the final judgment. Referencing any other “liability to Manuel Perea” is improper and prejudicial to MCC. MCC also objects to any testimony by Mr. Diamond that concerns the damages, liability, defense, etc. which is the subject of the motions of limine or subject of MCC’s above-described 9 objections. Simply put, this case is solely about insurance coverage for the underlying final judgment. MCC’s handling of the file—even if the court rules that MCC should have provided a defense—is wholly improper. As described, it is MCC’s position that Flicker Construction suffered no damages from the alleged breach, that speculation about a final judgment is improper, discussion of claim handling is improper, discussion of the amount, or extent, of Mr. Perea’s damages is improper. See above case law regarding bad faith damage. Defendant’s proposed language: To help you follow the evidence, I'll summarize the parties' positions. The Defendant, Mid- Continent Casualty Company, contends that Flicker Construction, Inc. ("Flicker") was the general contractor for the jobsite on which Manuel Perea ("Mr. Perea") was injured. Defendant contends Mr. Perea was a statutory employee of Flicker Construction, Inc. ("Flicker"); that is, Mr. Perea's injury arose out of or in the course of work he was performing under the construction permit obtained by Flicker Construction. As a result, Mid-Continent Casualty Company contends that coverage for Mr. Perea's injuries is excluded under the Workers’ Compensation and Employer’s Liability exclusions of the Mid-Continent insurance policy issued to Flicker. The Plaintiff denies that Mr. Perea was a statutory employee of Flicker and denies that coverage is barred by the Workers’ Compensation and Employer’s Liability exclusions of the Mid-Continent insurance policy. Plaintiff’s objection: Defendant’s proposed language omits Plaintiff’s claim for breach of duty to defend, as pled in Count V of the Complaint. The Court has already determined that MCC owed a duty to defend Flicker Construction from the lawsuit filed against itby Manuel Perea, and there is a pending 10 motion for partial summary judgment seeking a determination that MCC breached that duty by not defending. Plaintiff is entitled to seek the damages naturally resulting from the breach of duty to defend. See MCO Envtl., Inc. v. Agric. Excess & Surplus Ins. Co., 689 So. 2d 1114, 1116 (Fla. 3d DCA 1997) (holding that in a breach of duty to defend case, the insurer is liable for “all damages that flow naturally from the breach,” not just the amount of any attorneys’ fees incurred); Carrousel Concessions, Inc. v. Florida Ins. Guar. Ass'n, 483 So. 2d 513, 516 (Fla. 3d DCA 1986) (“If the insurer breaches its duty to defend, it—like any other party who fails to perform its contractual obligations—becomes liable for all damages naturally flowing from the breach.”). Additionally, the only factual issue for the jury to decide on the breach of the duty to indemnify is whether Flicker Construction was the statutory employer of Manuel Perea. Defendant’s description of the law on that issue is inaccurate. The fact that a company is listed as a general contractor on the building permit does not, standing alone, make that company a statutory employer for every person who works on the project. Plaintiff incorporates by reference Plaintiff’s Response (dated May 12, 2021) and Surreply (dated June 17, 2021) to Defendant’s “renewed cross-motion for summary judgment on the duty to indemnify.” Finally, the parties agree that the Workers’ Compensation and Employer’s Liability exclusions apply if Flicker Construction was the statutory employer of Mr. Perea. Introducing instructions related to those exclusions will only needlessly complicate the issues and potentially confuse the jury on the issues to be decided. See § 90.403, Fla. Stat. Agreed language: The principal witnesses who may testify in this case are: John Hughes, III, attorney at McLuskey, McDonald & Hughes, P.A. Michael Brader, as Corporate Representative of Mid-Continent Casualty Company Roman Flicker of Flicker Construction, Inc. 11 Jose Raphael Jimenez of Century Wide Remodeling, Inc. Moises Tacle of CV-CHES Corp., d/b/a Kosta Seafood & More… Karina Baquerizo of CV-CHES Corp., d/b/a Kosta Seafood & More… Manuel Perea Joshua Diamond, attorney at Florida Insurance Claims Attorney Advocates, P.A. Lewis Andrews, of Lewis Andrews Accounting Jose Baluja, as Corporate Representative of Universal Hood Tech 12 JURY INSTRUCTION NO.3 201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES Who are the people here and what do they do? Judge/Court: I am the Judge. You may hear people occasionally refer to me as “The Court.” That is the formal name for my role. My job is to maintain order and decide how to apply the rules of the law to the trial. I will also explain various rules to you that you will need to know in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit. Parties: A party who files a lawsuit is called the Plaintiff. A party that is sued is called the Defendant. Attorneys: The attorneys have the job of representing their clients. That means they speak for their client here at the trial. They have taken oaths as attorneys to do their best and to follow the rules for their profession. Plaintiff’s Counsel: The attorneys on this side of the courtroom, Brandon Cathey and Brent Steinberg, represent the Plaintiff, John Hughes, III, as receiver of Flicker Construction, Inc., and are the people who filed the lawsuit here at the courthouse. Their job is to present their client’s side of things to you. They and their client will be referred to most of the time as “the plaintiff.” Mr. Cathey, will you please introduce yourself and the people sitting at the table with you? Defendant’s Counsel: The attorney on this side of the courtroom, Ed Sylvester and ________, represents the Defendant, Mid-Continent Casualty Insurance Company, who has been sued. Their job is to present their client’s side of things to you. They and their client will usually be referred to here as “the defendant.” Mr. Sylvester, will you please introduce yourself and the people sitting at the table with you? 13 Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial. Court Reporter: The person sitting at the stenographic machine, (name), is the court reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during this trial. Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that. Jury: Last, but not least, is the jury, which we will begin to select in a few moments from among all of you. The jury’s job will be to decide what the facts are and what the facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit. In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case. I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service. You must not do any research or look up words, names, maps, or anything else that may 14 have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. Many of you may have cell phones, tablets, laptops, or other electronic devices with you here in the courtroom. All cell phones, computers, tablets, or other types of electronic devices must be turned off while you are in the courtroom. Turned off means that the phone or other electronic device is actually off and not in a silent or vibrating mode. You may use these devices during recesses, but even then you may not use your cell phone or electronic device to find out any information about the case or communicate with anyone about the case or the people involved in the case. Do not take photographs, video recordings, or audio recordings of the proceedings or of your fellow jurors. After each recess, please double check to make sure your cell phone or electronic device is turned off. At the end of the case, while you are deliberating, you must not communicate with anyone outside the jury room. You cannot have in the jury room any cell phones, computers, or other electronic devices. If someone needs to contact you in an emergency, the court can receive messages and deliver them to you without delay. A contact phone number will be provided to you. What are the reasons for these rules? These rules are imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom. If you investigate, research, or make inquiries on your own outside of the courtroom, the trial judge has no way to make sure that the information you obtain is proper for the case. The parties likewise have no opportunity to dispute or challenge the accuracy of what you find. That is contrary to our judicial system, which assures every party the right to ask questions about and challenge the 15 evidence being considered against it and to present argument with respect to that evidence. Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises. Any juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. A mistrial is a tremendous expense and inconvenience to the parties, the court, and the taxpayers. If you violate these rules, you may be held in contempt of court, and face sanctions, such as serving time in jail, paying a fine or both. All of your communications with courtroom personnel, or me, will be part of the record of these proceedings. That means those communications shall either be made in open court with the court reporter present or, if they are in writing, the writing will be filed with the court clerk. This means, if you are outside the courtroom, any communication with me must be in writing, unsigned, and handed directly to the bailiff. Do not share the content of the writing with anyone, including other jurors. I have instructed the courtroom personnel that any communications you have with them outside of my presence must be reported to me, and I will tell the parties and their attorneys about any communication from you that I believe may be of interest to the parties and their attorneys. However, you may communicate directly with courtroom personnel about matters concerning your comfort and safety, such as juror parking, location of break areas, how and when to assemble for duty, how to dress, and what personal items can be brought into the courthouse or jury room. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff. 16 JURY INSTRUCTION NO.4 201.3 EXPLANATION OF THE VOIR DIRE PROCESS Voir Dire: The last thing I want to do, before we begin to select the jury, is to explain to you how the selection process works. Questions/Challenges: This is the part of the case where the parties and their lawyers have the opportunity to get to know a littlebit about you, in order to help them come to their own conclusions about your ability to be fair and impartial, so they can decide who they think should be the jurors in this case. How we go about that is as follows: First, I’ll ask some general questions of you. Then, each of the lawyers will have more specific questions that they will ask of you. After they have asked all of their questions, I will meet with them and they will tell me their choices for jurors. Each side can ask that I exclude a person from serving on a jury if they can give me a reason to believe that he or she might be unable to be fair and impartial. That is what is called a challenge for cause. The lawyers also have a certain number of what are called peremptory challenges, by which they may exclude a person from the jury without giving a reason. By this process of elimination, the remaining persons are selected as the jury. It may take more than one conference among the parties, their attorneys, and me before the final selections are made. Purpose of Questioning: The questions that you will be asked during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you 17 have a question of either the attorneys or me, don’t hesitate to let me know. Response to Questioning: There are no right or wrong answers to the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, itis very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask for an explanation or clarification. In the process of selecting the jury, some of the lawyers’ questions may be meant to help them anticipate if your beliefs, experiences, or attitudes might make it difficult for you to apply the rules of law. Jurors take an oath to follow the law. After the jury is chosen and sworn in, I will instruct the jury on the rules they must follow in deciding this case. It is important for you to remember that it will not be the jury’s job to decide what the law ought to be Rather, the jury is to determine what the facts are, then apply the law to those facts, using the court’s instructions on the rules of law to apply—which will be fully given to the jury at the appropriate time. In sum, this is a process to assist the parties and their attorneys to select a fair and impartial jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you can be a fair and impartial juror, you must tell us. 18 JURY INSTRUCTION NO.5 202.1 INTRODUCTION Administer Oath: Do you solemnly swear or affirm that you will well and truly try this case between the Plaintiff and Defendant, and a true verdict render according to the law and evidence? You have now taken an oath to serve as jurors in this trial. Before we begin, I am going to tell you about the rules of law that apply to this case and let you know what you can expect as the trial proceeds. It is my intention to give you most of the rules of law but it might be that I will not know for sure all of the law that will apply in this case until all of the evidence is presented. However, I can anticipate most of the law and give it to you at the beginning of the trial so that you will better understand what to be looking for while the evidence is presented. If I later decide that different or additional law applies to the case, I will tell you. In any event, at the end of the evidence I will give you the final instructions on which you must base your verdict. At that time, you will have a complete written set of the instructions so you do not have to memorize what I am about to tell you. 19 JURY INSTRUCTION NO.6 202.2 EXPLANATION OF THE TRIAL PROCEDURE Now that you have heard the law, I want to let you know what you can expect as the trial proceeds. Opening Statements: In a few moments, the attorneys will each have a chance to make what are called opening statements. In an opening statement, an attorney is allowed to give you his views about what the evidence will be in the trial and what you are likely to see and hear in the testimony. Evidentiary Phase: After the attorneys’ opening statements the plaintiffs will bring their witnesses and evidence to you. Evidence: Evidence is the information that the law allows you to see or hear in deciding this case. Evidence includes the testimony of the witnesses, documents, and anything else that I instruct you to consider. Witnesses: A witness is a person who takes an oath to tell the truth and then answers attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called “giving testimony.” Testimony means statements that are made when someone has sworn an oath to tell the truth. The plaintiff’s lawyer will normally ask a witness the questions first. That is called direct examination. Then the defense lawyer may ask the same witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross-examination. After the plaintiff’s witnesses have testified, the Defendants will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiff’s lawyer gets to do cross-examination. The 20 process is designed to be fair to both sides. It is important that you remember that testimony comes from witnesses. The attorneys do not give testimony and they are not themselves witnesses. Objections: Sometimes the attorneys will disagree about the rules for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question. When there is an objection and I make a decision, you must not assume from that decision that I have any particular opinion other than that the rules for conducting a trial are being correctly followed. If I say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too. Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to have as few of these conferences as possible while you are giving us your valuable time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom. Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home. Instructions Before Closing Arguments: After all the evidence has been presented to 21 you, I will instruct you in the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision. Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments. Final Instructions: After you have heard the closing arguments, I will instruct you further in the law as well as explain to you the procedures you must follow to decide the case. Deliberations: After you hear the final jury instructions, you will go to the jury room and discuss and decide the questions I have put on your verdict form. You will have a copy of the jury