There is an article floating around blog-world about the M.I.T. Ph.D. who could not understand the jury instructions when he was on a jury. For example, see Raymond Ward’s entry at The (New) Legal writer.
It is easy for us to complain about the difficulty of understanding jury instructions but not so easy for a practicing attorney to do something about it. Ward gives a link to an article that provides the good and helpful advice that each jurisdiction should prepare pattern instructions that are easy to understand. Until that happens, however, what do you do?
Anticipating an appeal, you use language in your instructions that has been approved by the appellate courts. Sometimes that is a pattern instruction and sometimes it is just language from an opinion. Like it or not, this is generally the safest way to protect a verdict on appeal from questions about the instructions. Certainly, you can revise the patterns or the language of prior courts’ holdings in an attempt to make them easier for the jury to understand, but you do so at some risk. Maybe your greatest wish should be that oppposing counsel will get creative with the instructions, so that you can challenge them on appeal if you lose.
In any event, the long term answer is that lawyers should get involved in local bar associations to reconsider and, if necessary, re-write pattern jury instructions in a way that is understandable to jurors, even M.I.T. PhDs. Keep in mind that a lot of lawyers (me included) think that most pattern jury instructions make perfect sense. So maybe non-lawyers should be part of the process of re-writing the existing pattern instructions.