In re Standard Jury Instructions in Civil Cases—Report No. 16-01

Decision Date06 April 2017
Docket NumberNo. SC16–323,SC16–323
Citation214 So.3d 552 (Mem)
Parties IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 16–01.
CourtFlorida Supreme Court

Rebecca Mercier Vargas, Chair, Supreme Court Committee on Standard Jury Instructions in Civil Cases, West Palm Beach, Florida: and Laura K. Whitmore, Vice Chair and Subcommittee Chair, Filing Subcommittee of the Supreme Court Committee on Standard Jury Instructions in Civil Cases, Tampa, Florida, for Petitioner

Jennifer Daley on behalf of The Florida Chapter of the National Employment Lawyers Association, Fort Lauderdale, Florida: Chris Kleppin of Glasser & Kleppin, P.A., Plantation, Florida: Robert J. Sniffen, President, Academy of Florida Management Attorneys, Sniffen & Spellman, P.A., Tallahassee, Florida: April Boyer and Yamilet Hurtado of K & L Gates LLP, Miami, Florida: Frank E. Brown, B.C.S., and Amanda L. Neff of the Reemployment Assistance Appeals Commission, Tallahassee, Florida: and Cathleen Scott, Lindsey Wagner, Deborah S. Baker, Chelsea Bellew, and Michelle T. Murray of Scott Wagner & Associates, P.A., Jupiter, Florida, Responding with Comments

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes the following new instructions under new Section 417, Unlawful Discrimination, based upon the Florida Civil Rights Act (FCRA), sections 760.01 –760.11, Florida Statutes (2016): 417.1 (Introduction); 417.2 (Summary of Claims and Defenses): 417.3 (Greater Weight of the Evidence): 417.4 (Discrimination—Disparate Treatment): 417.5 (Legal Cause—Discrimination): 417.6 (Legal Cause—Damage): 417.7 (Issues on Plaintiff's Claim): 417.8 (Burden of Proof on Claim): 417.9 (Unlawful Discrimination Damages): 417.10 (Affirmative Defense—Failure to Mitigate Lost Wages): 417.11 (Affirmative Defense—After–Acquired Evidence): and 417.12 (Reduction of Damages to Present Value). Following publication by the Court, the Court received comments from the Academy of Florida Management Attorneys, April Boyer, Esq., Frank E. Brown, B.C.S., and Amanda L. Neff, Esq., the Florida Chapter of the National Employment Lawyers Association, Chris Kleppin, Esq., and Scott Wagner & Associates, P.A.

The unlawful discrimination instructions are in a format and style consistent to that approved by the Court in 2010 when the Court authorized for publication and use the reorganization of the civil jury instructions. See In re Std. Jury Instr. in Civil Cases—Report No. 09–01 (Reorganization of Civil Jury Instructions) , 35 So.3d 666 (Fla. 2010). Having considered the Committee's report, the comments filed with the Court, and the Committee's responses to the comments, we authorize the Committee's proposals for publication and use as set forth in the appendix to this opinion. New language is indicated by underlining. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

APPENDIX

417 UNLAWFUL DISCRIMINATION

417.1 Introduction

417.2 Summary of Claims and Defenses

417.3 Greater Weight of the Evidence

417.4 Discrimination—Disparate Treatment

417.5 Legal Cause—Discrimination

417.6 Legal Cause—Damage

417.7 Issues on Plaintiff's Claim

417.8 Burden of Proof on Claim

417.9 Unlawful Discrimination Damages

417.10 Affirmative Defense—Failure to Mitigate Lost Wages

417.11 Affirmative Defense—After–Acquired Evidence

417.12 Reduction of Damages to Present Value

NOTES ON USE

The instructions in this section are based upon the Florida Civil Rights Act of 1992 (FCRA), which makes it unlawful for an employer to discriminate based upon race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. F.S. 760.01 –760.11.

417.1 INTRODUCTION

Members of the jury, you have now heard and received all of the evidence in this case. I am now going to tell you about the rules of law that you must use in reaching your verdict. [You will recall at the beginning of the case I told you that if, at the end of the case I decided that different law applies, I would tell you so. These instructions are (slightly) different from what I gave you at the beginning, and it is these rules of law that you must now follow.] When I finish telling you about the rules of law, the attorneys will present their final arguments and you will then retire to decide your verdict.

NOTES ON USE FOR 417.1

1. When instructing the jury before taking evidence, use instruction 202.1 in lieu of instruction 417.1. See Model Instruction 1. Instruction 417.1 is for instructing the jury after the evidence has been concluded. Use the bracketed language in instruction 417.1 when the final instructions are different from the instructions given at the beginning of the case. If the instructions at the end of the case are different from those given at the beginning of the case, the committee recommends that the court point out the differences with appropriate language in the final instructions, including an explanation for the difference, such as when the court has directed a verdict on an issue.

2. Fla.R.Civ.P. 1.470(b) authorizes instructing the jury during trial or before or after final argument. The timing of instructions is within the sound discretion of the trial judge, to be determined on a case-by-case basis, but the committee strongly recommends instructing the jury before final argument.

3. Each juror must be provided with a full set of jury instructions for use during their deliberations. Fla.R.Civ.P. 1.470(b). The trial judge may find it useful to provide these instructions to the jurors when the judge reads the instructions in open court so that jurors can read along with the judge, as the judge reads the instructions aloud.

417.2 SUMMARY OF CLAIMS AND DEFENSES

The claim[s] [and defenses] in this case [is] [are] as follows: (claimant) claims that (defendant) discriminated against [him] [her] by [discharging] [failing to hire] [ (describe discriminatory treatment) ] (claimant) because of (claimant's) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status], and that the (describe discriminatory treatment) caused [him] [her] damage.

(Defendant) denies that claim [and also claims that (claimant) (describe any affirmative defenses) ].

[ (Claimant) ] [The parties] must prove [his] [her] [their] claim(s) [and defense(s) ] by the greater weight of the evidence. I will now define some of the terms you will use in deciding this case.

417.3 GREATER WEIGHT OF THE EVIDENCE

"Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case.

NOTES ON USE FOR 417.3

1. Greater or lesser number of witnesses. The committee recommends that no charge be given regarding the relationship (or lack of relationship) between the greater weight of the evidence and the greater or lesser number of witnesses.

2. Circumstantial evidence. The committee recommends that no charge generally be given distinguishing circumstantial from direct evidence. See Nielsen v. City of Sarasota , 117 So.2d 731 (Fla. 1960).

3. "Preponderance of evidence" and "burden of proof." The committee recommends that no charge be given using these terms, which are considered not helpful to a jury and not necessary in a charge that otherwise defines "greater weight of the evidence" and instructs the jury on the consequences of its determining that the greater weight of the evidence supports or does not support the claim or defense of a party.

417.4 DISCRIMINATION—DISPARATE TREATMENT

To "discriminate" means to treat an [employee] [applicant] differently with regard to compensation, terms, conditions, or privileges of employment because of the [employee's] [applicant's] [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status].

NOTES ON USE FOR 417.4

1. This instruction is for disparate treatment claims, as opposed to hostile environment, pattern and practice, or disparate impact claims. See, e.g., EEOC v. Joe's Stone Crab, Inc. , 220 F.3d 1263 (11th Cir. 2000) (explaining differences among disparate treatment, pattern and practice, and disparate impact claims of discrimination).

2. This instruction is based upon F.S. 760.10(1), which makes it an unlawful employment practice for an employer "(a) [t]o discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment" or "(b) [t]o limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee" when those employment practices taken are "because of such individual's race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status." This instruction can be modified to reflect the particular type of discriminatory treatment at issue.

417.5 LEGAL CAUSE—DISCRIMINATION

(Claimant's) [race] [color] [religion] [sex] [pregnancy] [national origin] [age] [handicap] [marital status] is the legal cause of (defendant's) decision to [discharge] [fail to hire] [ (describe discriminatory treatment) ] (claimant) if (defendant) made the...

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