PATTERN JURY INSTRUCTION COMMISSION MINUTES
JUNE 1997 MEETING
The Pattern Jury Instruction Commission met Friday, June 13, 1997 (12 noon until 2:30 p.m.).
Hon. William McLees
Hon. Gerald Rustad
Hon. James Vukelic
R. McLean chaired the meeting.
MINUTES. Minutes of the March meeting were reviewed.
Motion to approve: Hon. G. Rustad
Second: M. Stenehjem
FINANCIAL REPORT. Budget authorization for the 1995/97 biennium was $21,120. Through April, PJIC spent $16,380. The estimated budget for the 1997/99 biennium is $23,000.
INTERIM ACTIVITIES. Interim activities were reported. These included distributing minutes and sending handouts to members not in attendance. A brief article was sent to the Gavel, and the instructions to be published were posted on the Supreme Court website. The annual report was submitted to SBAND. Keithe Nelson responded to a question about reimbursement for Westlaw time: It is not included in the PJIC budget. Dean Davis was asked about holding the October PJIC meeting in Grand Forks, and Prof. Michael Ahlen accepted an invitation to speak at the meeting.
R. McLean reported discussing the feasibility of providing complete sets of updated jury instruction disks yearly with Sandi Tabor. Ms. Tabor's concern is that subscribers may not pay the full purchase price if they can receive a complete set with the updates.
NEW BUSINESS. The Commission discussed expanding the membership to include nonlawyers, possibly from the fields of journalism or communication. R. McLean noted that other states have asked former jurors to participate. Barbara Cichy, wife of attorney Joseph Cichy, was suggested as a possiblity due to her communications background. Whether her relative familiarity with legal jargon would make her more expert than the average juror was discussed. R. Reichert suggested appointing a former juror. B. Blazer, Hon. J. Vukelic, and Hon. G. Hagerty will form a subcommittee to consider the issue. They will suggest a name for possible membership at the next meeting.
Prof. Ahlen had requested more direction for his proposed presentation. Hon. J. Vukelic suggested that he ask students to review those criminal instructions that are given in 99% of the cases.
The instructions to be published this year were reviewed. R. McLean suggested that the specific name of the plaintiff and/or defendant be inserted whenever "plaintiff" or "defendant" are used. This can be done in the revisions.
In response to comments by Steve Johnson that publication must be a statement made by the defendant and that the person who interprets a statement to be defamatory must do so reasonably, PJI 436 (Publication), was modified. PJI 435 (Priviled Communication - Qualified Privilege), was amended to instruct the jury that they must determine whether or not the qualified privilege was abused. The phrase instructing the jury that they must find this in order for the plaintiff to recover was removed.
PJI 651 (Severe Defined) was tabled for further discussion because the phrase "of such substantial quantity" was troublesome. B. Blazer objected because the instruction would not be published until 1998, and others in the section on intentional infliction will be published this year. PJI 656 (Permissible Conduct) was also held so that the wording could be simplified.
In the agency section, the word "apparent" was removed from PJI 906 (Agency - Burden of Proof)
Steve Lian had expressed concern that informing the jury that the defendant is not responsible for an aggravation which results from natural causes might be misleading because the defendant would be responsible for an aggravation which naturally develops from the injury caused by the defendant. The Commission decided to hold PJI 1221 (Damages - Aggravation of Pre-Existing Condition) so that this can be discussed when D. Vogel, the member who drafted this instruction, is present.
PJI 2455 (Stalking) was discussed. One of the subsections appeared out of place, but it tracks the statute and is easily understood, so no changes were made.
INSTRUCTIONS TO BE PUBLISHED.
NDJI-CIVIL117 Acting in Concert (new note only)
370 Dram Shop Liability
412 Negligent Misrepresentation - Tort
435 Privileged Communication - Qualified Privilege
438 Invasion of Privacy
650 Intentional Infliction of Emotional Distress
652 Extreme and Outrageous Defined
653 Effect of Relationship of Parties
654 Susceptibility of Plaintiff
655 Intentional and Reckless Defined
901 Agent's Authority is Either Actual or Apparent
903 Agent Represents Principal
904 Apparent Agency - Basis of Authority
905 General and Special Agent Defined
906 Agency - Burden of Proof
915 Independent Contractor - Distinction
1292 Interest on Damages
2939 Driving Without Liability Insurance
RECOGNITION FOR FORMER MEMBERS. R. McLean received a plaques for his long service to PJIC. Plaques were sent to Hon. A. Schmalenberger, P. Morley, P. Durick, and S. Lian.
1. Insurance-Bad Faith (R. Reichert)
2. Special Verdict Forms - especially 1850 and 1855 (D. Vogel, Hon. M. Simonson, B. Blazer, M. Stenehjem)
3. Supplier's Duty to Warn (D. Vogel)
4. Employment Discrimination (Hon. W.McLees - wrongful discharge; B. Blazer and R. Reichert - discrimination)
5. Statements of Counsel (Hon. J. Vukelic)
6. Circumstantial Evidence (Hon. J. Vukelic)
7. Race/Gender Bias (Hon. J. Vukelic)
8. Retained Control (R. McLean)
9. Legislative Changes (Hon. G. Hagerty)
10. Murder/ Criminal Attempt (Hon. G. Hagerty)
11. Damages - 1201, 1202, 1203, 1210, 1220, and 1221; also whether a damages instruction is necessary in the emotional distress section (Hon. G. Rustad and M. Stenehjem)
12. Partnership and ostensible partners - 910, 915, 925, 930 (Hon. J. Vukelic)
13. Negligent Infliction of Emotional Distress (R. McLean)
14. Actual Physical Control
OCTOBER MEETING. The October meeting is October 2 and 3, 1997. The time and place will be announced.
NEW MEMBERS. Names of new members have not been received.