What email address or phone number would you like to use to sign in to Docs.com?
If you already have an account that you use with Office or other Microsoft services, enter it here.
Or sign in with:
Signing in allows you to download and like content, and it provides the authors analytical data about your interactions with their content.
Embed code for: Burns Jury Instructions v7
Select a size
CACI 5000: Duties of the Judge and Jury
Members of the jury, you have now heard all the evidence. The attorneys will have one last chance to talk to you in closing argument. But before they do, it is my duty to instruct you on the law that applies to this case. You must follow these instructions as well as those that I previously gave you. You will have a copy of my instructions with you when you go to the jury room to deliberate.
You must decide what the facts are. You must consider all the evidence and then decide what you think happened. You must decide the facts based on the evidence admitted in this trial.
Do not allow anything that happens outside this courtroom to affect your decision. Do not talk about this case or the people involved in it with anyone, including family and persons living in your household, friends and coworkers, spiritual leaders, advisors, or therapists. Do not do any research on your own or as a group. Do not use dictionaries or other reference materials.
These prohibitions on communications and research extend to all forms of electronic communications. Do not use any electronic devices or media, such as a cell phone or smart phone, PDA, computer, tablet device, the Internet, any Internet service, any text or instant-messaging service, any Internet chat room, blog, or website, including social networking websites or online diaries, to send or receive any information to or from anyone about this case or your experience as a juror until after you have been discharged from your jury duty.
Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial. You must not let bias, sympathy, prejudice, or public opinion influence your decision.
If you violate any of these prohibitions on communications and research, including prohibitions on electronic communications and research, you may be held in contempt of court or face other sanctions. That means that you may have to serve time in jail, pay a fine, or face other punishment for that violation.
I will now tell you the law that you must follow to reach your verdict. You must follow the law exactly as I give it to you, even if you disagree with it. If the attorneys say anything different about what the law means, you must follow what I say.
In reaching your verdict, do not guess what I think your verdict should be from something I may have said or done.
Pay careful attention to all the instructions that I give you. All the instructions are important because together they state the law that you will use in this case. You must consider all of the instructions together.
After you have decided what the facts are, you may find that some instructions do not apply. In that case, follow the instructions that do apply and use them together with the facts to reach your verdict.
If I repeat any ideas or rules of law during my instructions, that does not mean that these ideas or rules are more important than the others. In addition, the order in which the instructions are given does not make any difference.
Most of the instructions are typed. However, some handwritten or typewritten words may have been added, and some words may have been deleted. Do not discuss or consider why words may have been added or deleted. Please treat all the words the same, no matter what their format. Simply accept the instruction in its final form.
CACI 300: Breach of Contract – Introduction
Beth Burns claims that she and Defendant CSU entered into an Employment Agreement.
Beth Burns claims that CSU breached the Employment Agreement by terminating her without cause and refusing to pay her all the monies due under the Employment Agreement.
Beth Burns claims that CSU’s breach of the Employment Agreement caused harm to her for which CSU should pay.
CSU denies that it breached the Employment Agreement. CSU claims that it terminated Beth Burns for cause and that she is not entitled to payment of any further salary.
CACI 2420: Breach of Employment Contract – Specified Term – Essential Factual Elements
Beth Burns claims that CSU breached an employment contract for a specified term. To establish this claim, Beth Burns must prove all of the following:
That Beth Burns and CSU entered into an employment contract that specified a length of time that Beth Burns would remain employed;
That Beth Burns substantially performed her job duties;
That CSU breached the employment contract by terminating her without cause and refusing to pay her all the monies due under the Employment Agreement; and
That Beth Burns was harmed by CSU’s breach.
CACI 2421: Breach of Employment Contract – Specified Term – Good Cause Defense
CSU claims that it did not breach the employment contract because it terminated Beth Burns for cause. To establish cause, CSU must prove that Beth Burns engaged in conduct which is seriously prejudicial to the best interests of CSU or its athletic program or which is a material violation of CSU’s policies.
CACI 2405: Breach of Implied Employment Contract – Unspecified Term – “Good Cause” Defined – Misconduct (Modified)
Beth Burns claims that CSU did not have cause to terminate her Employment Agreement. CSU had good cause to terminate Plaintiff if CSU, acting in good faith, conducted an appropriate investigation giving it reasonable grounds to believe that Beth Burns engaged in conduct which is seriously prejudicial to the best interests of CSU or its athletic program or which is a material violation of CSU’s policies.
An appropriate investigation is one that is reasonable under the circumstances and includes notice to the employee of the claimed misconduct and an opportunity for the employee to answer the charge of misconduct before the decision to terminate is made.
CACI 325: Implied Covenant of Good Faith and Fair Dealing (Modified)
In every contract or agreement there is an implied promise of good faith and fair dealing. This means that each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract; however, the implied promise of good faith and fair dealing cannot create obligations that are inconsistent with the terms of the contract.
CACI 350: Introduction to Contract Damages (modified)
If you decide that Beth Burns has proved her claim against CSU for breach of employment contract, you also must decide how much money will reasonably compensate Beth Burns for the harm caused by the breach. This compensation is called “damages.” The purpose of such damages is to put Beth Burns in as good a position as she would have been if CSU had performed as promised.
To recover damages for any harm, Beth Burns must prove that when the contract was made, both parties knew or could reasonably have foreseen that the harm was likely to occur in the ordinary course of events as result of the breach of the contract.
Beth Burns also must prove the amount of her damages according to the following instructions. She does not have to prove the exact amount of damages. You must not speculate or guess in awarding damages.
Beth Burns claims damages for lost wagesgd and benefits due to her under the Employment Agreement.
Authority: Trial Ex. 66, § V.D; Civil Code § 3358 (“no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides”); Food Safety Net Services v. Eco Safe Systems USA, Inc., 209 Cal. App. 4th 1118, 1125-1127 (2012); CAZA Drilling (California), Inc. v. Gas U.S.A., Inc., 142 Cal. App. 4th 453, 468-76 (2006); Wheeler v. Oppenheimer, 140 Cal. App. 2d 497, 499-500 (1956).
CACI 358: Mitigation of Damages
If CSU breached the Employment Agreement and the breach caused harm, Burns is not entitled to recover damages for harm that CSU proves Burns could have avoided with reasonable efforts or expenditures. You should consider the reasonableness of Burns’ efforts in light of the circumstances facing her at the time, including her ability to make the efforts or expenditures without undue risk or hardship.
If Burns made reasonable efforts to avoid harm, then your award should include reasonable amounts that she spent for this purpose.
CACI 4601: Protected Disclosure by State Employee – California Whistleblower Protection Act – Essential Factual Elements (Gov. Code, § 8547.8(c))
Beth Burns claims that she made a protected disclosure in good faith and that CSU terminated her employment as a result. In order to establish this claim, Beth Burns must prove all of the following:
That Beth Burns made a protected disclosure to CSU in good faith;
That CSU terminated Beth Burns’ employment;
That Beth Burns’ protected disclosure was a contributing factor in CSU’s decision to terminate her employment;
That Beth Burns was harmed; and
That CSU’s conduct was a substantial factor in causing Beth Burns harm.
Special Instruction – Protected Disclosures
A “Protected Disclosure” is a good faith communication that discloses information that may evidence an improper governmental activity.
Authority: Cal. Gov. Code § 8547.2(e)
Special Instruction – Improper Governmental Activity
An “Improper Governmental Activity” means an activity by a state agency or by an employee that is undertaken in the performance of the employee’s duties that is in violation of any state or federal law or regulation.
Authority: Cal. Gov. Code § 8547.2(c)
Special Instruction – Title IX
Title IX of the Education Amendments of 1972 requires CSU to provide equal athletic opportunities for male and female athletes considering the following factors:
Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
The provision of equipment and supplies;
Scheduling of games and practice time;
Travel and per diem allowance;
Opportunity to receive coaching and academic tutoring;
Assignment and compensation of coaches and tutors;
Provision of locker rooms, practice and competitive facilities;
Provision of medical and training facilities and services;
Provision of housing and dining facilities and services; and
Spending the same amount of money on men’s and women’s sports does not automatically satisfy this requirement.
34 C.F.R. § 106.41; Chalenor v. University of N.D., 142 F. Supp. 2d 1154, 1157 (D.N.D. 2000).
CACI 4602: Affirmative Defense – Same Decision
If Beth Burns proves that her making a protected disclosure was a contributing factor to her termination, CSU is not liable if it proves by clear and convincing evidence that it would have discharged Beth Burns anyway at that time, for legitimate, independent reasons.
Special Instruction – Failure to Investigate
The element of Beth Burns’ claim requiring proof that a protected disclosure was a contributing factor for her termination may be established by an inference derived from indirect or circumstantial evidence, such as evidence that CSU failed to adequately investigate the charges upon which it based her termination, or evidence that CSU failed to adequately investigate the charges brought by Beth Burns in the whistleblower complaint she filed with CSU in April 2014. An adequate investigation is one that is appropriate to the circumstances of the case.
Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243; Coltran v. Rollins Hudig Hall Int’l, Inc. (1998) 17 Cal.4th 93, 109; Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 264.
Special Instruction – Pretext
The element of Beth Burns’ claim requiring proof that a protected disclosure was a contributing factor for her termination may be established by indirect or circumstantial evidence that shows that the reasons CSU stated for terminating Beth Burns were actually an excuse to cover up retaliation.
Kotla v. Regents of the Univ. of Cal. (2004) 115 Cal.App.4th 283, 295, fn. 8; Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 141; Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028, 1062; Dominguez v. Wash. Mut. Bank (2008) 168 Cal. App. 4th 714, 725-27; Johnson v. United Cerebral Palsy/Spastic Children's Found. (2009) 173 Cal. App. 4th 740, 759; Johnson v. United Cerebral Palsy/Spastic Children's Found. (2009) 173 Cal. App. 4th 740, 759; Grimes v. UPS (9th Cir. 2010) 365 F. App'x 71, 73; Sada v. Robert F. Kennedy Med. Ctr. (Cal App 2d, 1997) 56 Cal App 4th 138, reh'g denied, Sada v. Robert F. Kennedy Medical Ctr. (Cal App 2d, 1997) 1997 Cal App LEXIS 626, review denied, Sada v. Robert F. Kennedy Medical Ctr. (1997) 1997 Cal LEXIS 6035.
CACI 3900: Introduction to Tort Damages – Liability Contested
If you decide that Beth Burns has proved her claim for whistleblower retaliation against CSU, you also must decide how much money will reasonably compensate Beth Burns for the harm. This compensation is called “damages.”
The amount of damages must include an award for each item of harm that was caused by CSU’s wrongful conduct, even if the particular harm could not have been anticipated.
Beth Burns does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. However, you must not speculate or guess in awarding damages.
CACI 3902: Economic and Noneconomic Damages
The damages claimed by Beth Burns for the harm caused by CSU fall into two categories called economic damages and noneconomic damages. You will be asked on the verdict form to state the two categories of damages separately.
CACI 3903: Items of Economic Damage (modified)
The following are the specific items of economic damages claimed by Beth Burns:
On her claim for Breach of the Employment Agreement, Beth Burns is seeking $1,582,262.00 in economic damages comprised of 1) Past loss of $566,505.00 and 2) .
On her claim for Whistleblower Retaliation, Beth Burns is seeking $3,053,322.00 in economic damages.
CACI 3903C: Future Lost Earnings (Economic Damage)
To recover damages for future lost earnings, Beth Burns must prove the amount of income she will be reasonably certain to lose in the future as a result of the injury.
CACI 3903D: Lost Earning Capacity (Economic Damage)
To recover damages for the loss of the ability to earn money as a result of the injury, Beth Burns must prove the reasonable value of that loss to her. It is not necessary that she have a work history.
CACI 3904A: Present Cash Value
If you decide that Beth Burns’ harm includes future economic damages for loss of earnings, then the amount of those future damages must be reduced to their present cash value. This is necessary because money received now will, through investment, grow to a larger amount in the future. CSU must prove the amount by which future damages should be reduced to present value.
To find present cash value, you must determine the amount of money that, if reasonably invested today, will provide Burns with the amount of her future damages.
You may consider expert testimony in determining the present cash value of future economic damages.
CACI 3905: Items of Noneconomic Damage
The following are the specific items of noneconomic damages claimed by Beth Burns:
CACI 3905A: Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)
Past and future mental suffering, inconvenience, anxiety, humiliation, loss of enjoyment of life, and emotional distress.
No fixed standard exists for deciding the amount of these noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.
To recover for future mental suffering, inconvenience, anxiety, humiliation, and emotional distress, Beth Burns must prove that she is reasonably certain to suffer that harm.
For future mental suffering, inconvenience, anxiety, humiliation, and emotional distress, determine the amount in current dollars paid at the time of judgment that will compensate Beth Burn for future mental suffering, inconvenience, anxiety, humiliation, and emotional distress. This amount of noneconomic damages should not be further reduced to present cash value because that reduction should only be performed with respect to economic damages.
CACI 3924: No Punitive Damages
You must not include in your award any damages to punish or make an example of CSU. Such damages would be punitive damages, and they cannot be a part of your verdict. You must award only the damages that fairly compensate Beth Burns for her loss.
CACI 3925: Arguments of Counsel Not Evidence of Damages
The arguments of the attorneys are not evidence of damages. Your award must be based on your reasoned judgment applied to the testimony of the witnesses and other evidence that has been admitted during trial.
CACI 3930: Mitigation of Damages
If you decide CSU is responsible for gender discrimination or whistleblower retaliation, Beth Burns not entitled to recover damages for harm that CSU proves Burns could have avoided with reasonable efforts or expenditures.
You should consider the reasonableness of Burns’ efforts in light of the circumstances facing her at the time, including her ability to make the efforts or expenditures without undue risk or hardship.
CACI 3932: Life Expectancy
If you decide Beth Burns has suffered damages that will continue for the rest of her life, you must determine how long she will probably live. According to the National Vital Statistics Reports (2015), a 58-year-old female is expected to live another 26 years. This is the average life expectancy. Some people live longer and others die sooner.
This published information is evidence of how long a person is likely to live but is not conclusive. In deciding a person’s life expectancy, you should also consider, among other factors, that person’s health, habits, activities, lifestyle, and occupation.
CACI 3934: Damages on Multiple Legal Theories
Beth Burns seeks damages from CSU under more than one legal theory. However, each item of damages may be awarded only once, regardless of the number of legal theories alleged.
You will be asked to decide whether CSU is liable to Beth Burns under the following legal theories:
1. Breach of Employment Agreement;
2. Discrimination; and
3. Whistleblower Retaliation.
The following items of damages are recoverable only once under all of the above legal theories:
Past earnings and benefits; and
Future earnings and benefits
The following additional item of damages are recoverable only once for Discrimination and Whistleblower Retaliation:
1. Future retirement benefits; and
2. Noneconomic damages, such as damages for past and future mental suffering, inconvenience, anxiety, humiliation, loss of enjoyment of life, and emotional distress
CACI 3945: Punitive Damages – Individual and Entity Defendants – Trial Not Bifurcated
If you decide that CSU’s conduct caused Beth Burns harm, you must decide whether that conduct justifies an award of punitive damages. The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.
You may award punitive damages against CSU only if Beth Burns proves that CSU engaged in that conduct with malice, oppression, or fraud. To do this, Beth Burns must prove one of the following by clear and convincing evidence:
1. That the conduct constituting malice, oppression, or fraud was committed by one or more officers, directors, or managing agents of CSU, who acted on behalf of CSU;
2. That the conduct constituting malice, oppression, or fraud was authorized by one or more officers, directors, or managing agents of CSU; or
3. That one or more officers, directors, or managing agents of CSU knew of the conduct constituting malice, oppression, or fraud and adopted or approved that conduct after it occurred.
“Malice” means that CSU acted with intent to cause injury or that CSU’s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.
“Oppression” means that CSU’s conduct was despicable and subjected Beth Burns to cruel and unjust hardship in knowing disregard of her rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.
“Fraud” means that CSU intentionally misrepresented or concealed a material fact and did so intending to harm Beth Burns.
An employee is a “managing agent” if he or she exercises substantial independent authority and judgment in his or her corporate decisionmaking such that his or her decisions ultimately determine corporate policy.
There is no fixed formula for determining the amount of punitive damages, and you are not required to award any punitive damages. If you decide to award punitive damages, you should consider all of the following factors in determining the amount:
(a) How reprehensible was CSU’s conduct? In deciding how reprehensible CSU’s conduct was, you may consider, among other factors:
1. Whether the conduct caused physical harm;
2. Whether CSU disregarded the health or safety of others;
3. Whether Beth Burns was financially weak or vulnerable and CSU knew Beth Burns was financially weak or vulnerable and took advantage of her;
4. Whether CSU’s conduct involved a pattern or practice; and
5. Whether CSU acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive damages and Beth Burns’ harm or between the amount of punitive damages and potential harm to Beth Burns that CSU knew was likely to occur because of its conduct?
(c) In view of CSU’s financial condition, what amount is necessary to punish it and discourage future wrongful conduct? You may not increase the punitive award above an amount that is otherwise appropriate merely because CSU has substantial financial resources.
CACI 3961: Duty to Mitigate Damages for Past Lost Earnings
Beth Burns is not entitled to recover damages for economic losses that CSU proves Burns could have avoided by returning to gainful employment as soon as it was reasonable for her to do so.
To calculate the amount of damages you must:
1. Determine the amount Burns would have earned from the job she held at the time she was injured pursuant to the Employment Agreement; and
2. Subtract the amount Burns earned or could have earned by returning to gainful employment.
The resulting amount is Beth Burns’ damages for past lost earnings.
CACI 3962: Duty to Mitigate Damages for Future Lost Earnings
Beth Burns is not entitled to recover damages for future economic losses that CSU proves Burns will be able to avoid by returning to gainful employment as soon as it is reasonable for her to do so.
If you decide that Burns will be able to return to work, then you must not award her any damages for the amount she will be able to earn from future gainful employment. To calculate the amount of damages you must:
1. Determine the amount Beth Burns would have earned from the job she held at the time she was injured pursuant to the Employment Agreement; and
2. Subtract the amount Burns is reasonably able to earn from alternate employment.
The resulting amount is Beth Burns’ damages for future lost earnings.
CACI 3964: Jurors Not to Consider Attorney Fees and Court Costs
You must not consider, or include as part of any award, attorney fees or expenses that the parties incurred in bringing or defending this lawsuit.
CACI 5001: Insurance
You must not consider whether any of the parties in this case has insurance. The presence or absence of insurance is totally irrelevant. You must decide this case based only on the law and the evidence.
CACI 5002: Evidence
You must decide what the facts are in this case only from the evidence you have seen or heard during the trial, including any exhibits that I admit into evidence. Sworn testimony, documents, or anything else may be admitted into evidence. You may not consider as evidence anything that you saw or heard when court was not in session, even something done or said by one of the parties, attorneys, or witnesses.
What the attorneys say during the trial is not evidence. In their opening statements and closing arguments, the attorneys talk to you about the law and the evidence. What the lawyers say may help you understand the law and the evidence, but their statements and arguments are not evidence.
The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence. You should not think that something is true just because an attorney’s question suggested that it was true. [However, the attorneys for both sides have agreed that certain facts are true. This agreement is called a stipulation. No other proof is needed and you must accept those facts as true in this trial.]
Each side had the right to object to evidence offered by the other side. If I sustained an objection to a question, ignore the question and do not guess as to why I sustained the objection. If the witness did not answer, you must not guess what he or she might have said. If the witness already answered, you must ignore the answer.
[During the trial I granted a motion to strike testimony that you heard. You must totally disregard that testimony. You must treat it as though it did not exist.]
CACI 200: Obligation to Prove – More Likely True Than Not True
A party must persuade you, by the evidence presented in court, that what he or she is required to prove is more likely to be true than not true. This is referred to as “the burden of proof.”
After weighing all of the evidence, if you cannot decide that something is more likely to be true than not true, you must conclude that the party did not prove it. You should consider all the evidence, no matter which party produced the evidence.
In criminal trials, the prosecution must prove that the defendant is guilty beyond a reasonable doubt. But in civil trials, such as this one, the party who is required to prove something need prove only that it is more likely to be true than not true.
CACI 201: Highly Probable – Clear and Convincing Proof
Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means the party must persuade you that it is highly probable that the fact is true. I will tell you specifically which facts must be proved by clear and convincing evidence.
CACI 202: Direct and Indirect Evidence
Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion.
Direct evidence can prove a fact by itself. For example, if a witness testifies she saw a jet plane flying across the sky, that testimony is direct evidence that a plane flew across the sky. Some evidence proves a fact indirectly. For example, a witness testifies that he saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.
As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves.
CACI 203: Willful Suppression of Evidence
You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to the party.
CACI 206: Evidence Admitted for Limited Purpose
During the trial, I explained to you that certain evidence was admitted for a limited purpose. You may consider that evidence only for the limited purpose that I described, and not for any other purpose.
CACI 208: Deposition as Substantive Evidence
During the trial, you received deposition testimony that was read from a deposition transcript or shown by video. A deposition is the testimony of a person taken before trial. At a deposition the person is sworn to tell the truth and is questioned by the attorneys. You must consider the deposition testimony that was presented to you in the same way as you consider testimony given in court.
CACI 209: Use of Interrogatories of a Party
Before trial, each party has the right to ask the other parties to answer written questions. These questions are called interrogatories. The answers are also in writing and are given under oath. You must consider the questions and answers that were read to you the same as if the questions and answers had been given in court.
CACI 210: Requests for Admission
Before trial, each party has the right to ask another party to admit in writing that certain matters are true. If the other party admits those matters, you must accept them as true. No further evidence is required to prove them.
CACI 212: Statements of a Party Opponent
A party may offer into evidence any oral or written statement made by an opposing party outside the courtroom.
When you evaluate evidence of such a statement, you must consider these questions:
1. Do you believe that the party actually made the statement? If you do not believe that the party made the statement, you may not consider the statement at all.
2. If you believe that the statement was made, do you believe it was reported accurately?
You should view testimony about an oral statement made by a party outside the courtroom with caution.
CACI 215: Exercise of a Communication Privilege
Each party and witness has an absolute right not to disclose what he or she told his or her attorney in confidence because the law considers this information privileged. Do not consider, for any reason at all, the fact that a party or witness did not disclose what he or she told his or her attorney. Do not discuss that fact during your deliberations or let it influence your decision in any way.
CACI 217: Evidence of Settlement
You have heard evidence that there was a settlement between CSU and Adam Barrett. You must not consider this settlement to determine responsibility for any harm. You may consider this evidence only to decide whether Adam Barrett is biased or prejudiced and whether his testimony is believable.
CACI 219: Expert Witness Testimony
During the trial you heard testimony from expert witnesses. The law allows an expert to state opinions about matters in his or her field of expertise even if he or she has not witnessed any of the events involved in the trial.
You do not have to accept an expert's opinion. As with any other witness, it is up to you to decide whether you believe the expert's testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert's testimony. In deciding whether to believe an expert's testimony, you should consider:
a. The expert's training and experience;
b. The facts the expert relied on; and
c. The reasons for the expert's opinion.
CACI 220: Experts – Questions Containing Assumed Facts
The law allows expert witnesses to be asked questions that are based on assumed facts. These are sometimes called “hypothetical questions.”
In determining the weight to give to the expert's opinion that is based on the assumed facts, you should consider whether the assumed facts are true.
CACI 221: Conflicting Expert Testimony
If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters that each witness relied on. You may also compare the experts’ qualifications.
CACI 223: Opinion Testimony of Lay Witness
A witness who was not testifying as an expert gave an opinion during the trial. You may, but are not required to, accept that opinion. You may give the opinion whatever weight you think is appropriate.
Consider the extent of the witness’s opportunity to perceive the matters on which the opinion is based, the reasons the witness gave for the opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
CACI 5003: Witnesses
A witness is a person who has knowledge related to this case. You will have to decide whether you believe each witness and how important each witness’s testimony is to the case.
(a) How well did the witness see, hear, or otherwise sense what he or she described in court?
(b) How well did the witness remember and describe what happened?
(c) How did the witness look, act, and speak while testifying?
(d) Did the witness have any reason to say something that was not true? For example, did the witness show any bias or prejudice or have a personal relationship with any of the parties involved in the case or have a personal stake in how this case is decided?
(e) What was the witness’s attitude toward this case or about giving testimony?
Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people may see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.
However, if you decide that a witness deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest.
Do not make any decision simply because there were more witnesses on one side than on the other. If you believe it is true, the testimony of a single witness is enough to prove a fact.
You must not be biased in favor of or against any witness because of his or her disability, gender, race, religion, ethnicity, sexual orientation, age, national origin or socioeconomic status.
CACI 5006: Non-Person Party
A public entity is a party in this lawsuit. CSU is entitled to the same fair and impartial treatment that you would give to an individual. You must decide this case with the same fairness that you would use if you were deciding the case between individuals.
CACI 5009: Predeliberation Instructions
When you go to the jury room, the first thing you should do is choose a presiding juror. The presiding juror should see to it that your discussions are orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider the views of all the jurors. Each of you must decide the case for yourself, but only after you have considered the evidence with the other members of the jury. Feel free to change your mind if you are convinced that your position should be different. You should all try to agree. But do not give up your honest beliefs just because the others think differently.
Please do not state your opinions too strongly at the beginning of your deliberations or immediately announce how you plan to vote as it may interfere with an open discussion. Keep an open mind so that you and your fellow jurors can easily share ideas about the case.
You should use your common sense and experience in deciding whether testimony is true and accurate. However, during your deliberations, do not make any statements or provide any information to other jurors based on any special training or unique personal experiences that you may have had related to matters involved in this case. What you may know or have learned through your training or experience is not a part of the evidence received in this case.
Sometimes jurors disagree or have questions about the evidence or about what the witnesses said in their testimony. If that happens, you may ask to have testimony read back to you or ask to see any exhibits admitted into evidence that have not already been provided to you. Also, jurors may need further explanation about the laws that apply to the case. If this happens during your discussions, write down your questions and give them to the bailiff. I will talk with the attorneys before I answer so it may take some time. You should continue your deliberations while you wait for my answer. I will do my best to answer them. When you write me a note, do not tell me how you voted on an issue until I ask for this information in open court.
At least nine jurors must agree on a verdict. When you have finished filling out the form, your presiding juror must write the date and sign it at the bottom and then notify the bailiff that you are ready to present your verdict in the courtroom.
Your decision must be based on your personal evaluation of the evidence presented in the case. Each of you may be asked in open court how you voted on each question.
While I know you would not do this, I am required to advise you that you must not base your decision on chance, such as a flip of a coin. If you decide to award damages, you may not agree in advance to simply add up the amounts each juror thinks is right and then, without further deliberations, make the average your verdict.
You may take breaks, but do not discuss this case with anyone, including each other, until all of you are back in the jury room.
CACI 5010: Taking Notes During the Trial
If you have taken notes during the trial, you may take your notebooks with you into the jury room.
You may use your notes only to help you remember what happened during the trial. Your independent recollection of the evidence should govern your verdict. You should not allow yourself to be influenced by the notes of other jurors if those notes differ from what you remember.
CACI 5012: Introduction to Special Verdict Form
I will give you verdict forms with questions you must answer. I have already instructed you on the law that you are to use in answering these questions. You must follow my instructions and the forms carefully. You must consider each question separately. Although you may discuss the evidence and the issues to be decided in any order, you must answer the questions on the verdict forms in the order they appear. After you answer a question, the form tells you what to do next. At least 9 of you must agree on an answer before you can move on to the next question. However, the same 9 or more people do not have to agree on each answer.
All 12 of you must deliberate on and answer each question regardless of how you voted on any earlier question. Unless the verdict form tells all 12 jurors to stop and answer no further questions, every juror must deliberate and vote on all of the remaining questions.
When you have finished filling out the forms, your presiding juror must write the date and sign it at the bottom and then notify the bailiff that you are ready to present your verdict in the courtroom.
CACI 5013: Deadlocked Jury Admonition
You should reach a verdict if you reasonably can. You have spent time trying to reach a verdict, and this case is important to the parties so that they can move on with their lives with this matter resolved.
If you are unable to reach a verdict, the case will have to be tried before another jury selected in the same manner and from the same community from which you were chosen and at additional cost to everyone.
Please carefully consider the opinions of all the jurors, including those with whom you disagree. Keep an open mind and feel free to change your opinion if you become convinced that it is wrong.
You should not, however, surrender your beliefs concerning the truth and the weight of the evidence. Each of you must decide the case for yourself and not merely go along with the conclusions of your fellow jurors.
CACI 5014: Substitution of Alternate Juror
One of your fellow jurors has been excused and an alternate juror has been selected to take [his/her] place. The alternate juror must be given the opportunity to participate fully in your deliberations. Therefore, you must set aside and disregard all past deliberations and begin your deliberations all over again.
CACI 5015: Instruction to Alternate Jurors on Submission of Case to Jury
The jury will soon begin deliberating, but you are still alternate jurors and are bound by my earlier instructions about your conduct.
Until the jury is discharged, do not talk about the case or about any of the people or any subject involved in it with anyone, not even your family or friends, and not even with each other. Do not have any contact with the deliberating jurors. Do not decide how you would vote if you were deliberating. Do not form or express an opinion about the issues in this case, unless you are substituted for one of the deliberating jurors.
CACI 5016: Judge’s Commenting on Evidence
In this case, I have exercised my right to comment on the evidence. However, you the jury are the exclusive judges of all questions of fact and of the credibility of the witnesses. You are free to completely ignore my comments on the evidence and to reach whatever verdict you believe to be correct, even if it is contrary to any or all of those comments.
CACI 5017: Polling the Jury
After your verdict is read in open court, you may be asked individually to indicate whether the verdict expresses your personal vote. This is referred to as “polling” the jury and is done to ensure that at least nine jurors have agreed to each decision.
The verdict forms that you will receive ask you to answer several questions. You must vote separately on each question. Although nine or more jurors must agree on each answer, it does not have to be the same nine for each answer. Therefore, it is important for each of you to remember how you have voted on each question so that if the jury is polled, each of you will be able to answer accurately about how you voted.
Each of you will be provided a draft copy of the verdict forms for your use in keeping track of your votes.
CACI 5018: Audio or Video Recording and Transcript
A video recording has been admitted into evidence, and a transcript of the recording has been provided to you. The recording itself is the evidence. The transcript may not be completely accurate. It may contain errors, omissions, or notations of inaudible portions of the recording. Therefore, you should use the transcript only as a guide to help you in following along with the recording. If there is a discrepancy between your understanding of the recording and the transcript, your understanding of the recording must prevail.
For the video deposition(s) of ___________________________________ the transcript is the official record that you should consider as evidence.
CACI 5019: Questions from Jurors
If, during the trial, any of you had a question that you believed should be asked of a witness, you were instructed to write out the question and provide it to me through my courtroom staff. I shared your questions with the attorneys, after which, I decided whether the question could be asked.
If a question was asked and answered, you are to consider the answer as you would any other evidence received in the trial. Do not give the answer any greater or lesser weight because it was initiated by a juror question.
If the question was not asked, do not speculate as to what the answer might have been or why it was not asked. There are many legal reasons why a suggested question cannot be asked of a witness. Give the question no further consideration.
CACI 5020: Demonstrative Evidence
During the trial, materials have been shown to you to help explain testimony or other evidence in the case. Some of these materials have been admitted into evidence, and you will be able to review them during your deliberations.
Other materials have also been shown to you during the trial, but they have not been admitted into evidence. You will not be able to review them during your deliberations because they are not themselves evidence or proof of any facts. You may, however, consider the testimony given in connection with those materials.
CACI 5021: Electronic Evidence
Some exhibits that have been admitted into evidence will be provided to you electronically. The equipment necessary to view these exhibits will be available to you in the jury room. Do not use the equipment for any purpose other than to view the electronic exhibits. Do not use it to access the Internet or any other source of information. Do not use it for any personal reason whatsoever, including but not limited to reviewing email, entertainment, or engaging in social media.
If you need technical assistance or additional equipment or supplies, you may make a request by sending me a note through the [clerk/bailiff/ court attendant]. Should it become necessary for a technician to enter the jury room, stop your deliberations until the technician has left. Do not discuss with him or her, or with each other, any exhibit or any aspect of the case while the technician is present. Do not say anything to the technician other than to (1) describe the technical problem(s) and/or to (2) request instruction on how to operate the equipment.
[You may request a paper copy of an exhibit received in evidence. One will be supplied, if possible.]
CACI 5090: Final Instruction on Discharge of Jury
Members of the jury, this completes your duties in this case. On behalf of the parties and their attorneys, thank you for your time and your service. It can be a great personal sacrifice to serve as a juror, but by doing so you are fulfilling an extremely important role in California’s system of justice. Each of us has the right to a trial by jury, but that right would mean little unless citizens such as each of you are willing to serve when called to do so. You have been attentive and conscientious during the trial, and I am grateful for your dedication.
Throughout the trial, I continued to admonish you that you could not discuss the facts of the case with anyone other than your fellow jurors and then only during deliberations when all twelve jurors were present. I am now relieving you from that restriction, but I have another admonition.
You now have the absolute right to discuss or not to discuss your deliberations and verdict with anyone, including members of the media. It is appropriate for the parties, their attorneys or representatives to ask you to discuss the case, but any such discussion may occur only with your consent and only if the discussion is at a reasonable time and place. You should immediately report any unreasonable contact to the court.
If you do choose to discuss the case with anyone, feel free to discuss it from your own perspective, but be respectful of the other jurors and their views and feelings.
Thank you for your time and your service; you are discharged.Jurors
Other materials have also been shown to you during the trial, but they have not been admitted into evidence. You will not be able to review them during your deliberations because they are not themselves evidence or proof of any facts. You may, however, consider the testimony given in connection