Second, you must not be influenced by sympathy, passion or prejudice in favor of any party or against any of the parties.

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1 CLOSING INSTRUCTIONS Members of the jury, we now come to that part of the case where I must give you the instructions on the law. If you cannot hear me, please raise your hand. It is important that you hear everything I say. You have taken an oath to try this case in a just and impartial manner. You must treat all parties equally, without regard to their situation in life. You are the sole judges of the facts, but your judgment must be based only on the evidence which you have heard and seen during the trial. If during the trial I have said or done anything that has suggested to you that I favor the claims or the position of any party, you should disregard it. If I have indicated to you in any that I have any opinion as to what the facts are in this case or should be, you should disregard that. I am not the judge of the facts. You are the sole judge of the facts. It is my duty to tell you the law that applies in this case and it is your duty to follow the law as I state it to you. You should not be concerned with the wisdom of any rule of law that I might tell you about. You should consider what I say about the law as a whole. You should not single out any one sentence, or any individual point or idea and ignore the others. The order in which the statements about the law are made have no significance as to their relative importance. As jurors, there are certain guidelines which you should follow in resolving the issues of fact, in determining the credibility or believability of the witnesses, the weight of their testimony and thereby arriving at what the facts are in this case. First, you are to consider the evidence which has been offered during the trial and such inferences as you may logically and reasonably draw from the evidence. Second, you must not be influenced by sympathy, passion or prejudice in favor of any party or against any of the parties. Third, if testimony on any point is not contradicted, you should treat it as proving that fact unless the testimony seems to you to be impossible or very improbable, or unless the witness has shown by his or her testimony or it is shown by the other evidence in the case to be unworthy of belief. When testimony conflicts, you will get at the truth by weighing the testimony of one witness against that of the others by considering the witness interest or lack of interest in the outcome of the case, the partiality or fairness of the witness relative opportunity of knowing the facts about which he or she has given testimony, and the other evidence in the case. You need not accept all of the testimony of a witness as being true or false; you may accept and believe those parts of a witness testimony that you consider logical and reasonable and reject those parts of the testimony that seem impossible or improbable. The testimony of an apparently disinterested witness, if credible, is generally entitled to great weight. 1

2 Fourth, if the testimony of a witness is inconsistent with a prior statement, it is your duty to determine if the testimony of the witness should be discredited. If you decide that the testimony of the witness has been discredited, then you are to decide what weight, if any, to give to that testimony. If you should find that a witness has testified falsely as to a material fact, then you have the right to reject the entire testimony for the witness or reject only part of the testimony, based upon how you are impressed with the truthfulness of the witness. You are not to consider the number of witnesses. The fact that the plaintiff or defendant may have produced more witnesses than the other should not, in and of itself, be given any greater weight. In arriving at the preponderance, it is the quality and not necessarily the quantity of witnesses. Using these tests, you should determine the credibility or believability of the witnesses and the weight of their testimony and thereby arrive at the facts of this case. This being a civil case, the facts need not be proved beyond a reasonable doubt as in a criminal case, but only by a preponderance of the evidence. It is therefore sufficient for the proof of a fact that on a consideration of all the evidence you will find its existence more probable than its non-existence; in other words, that you believe it is more likely true than not. ARGUMENTS AND STIPULATIONS Statements and arguments of counsel are not evidence in the case and you should ignore those arguments which are not supported by the facts as you find them. If during the trial the attorneys have stipulated to any fact, you are bound to accept that fact as conclusively proven. OBJECTIONS During the course of the trial, you have heard objections to evidence. It is the duty of the lawyers on each side of the case to object when the other side offers testimony or other evidence which the lawyer believes is not properly admissible. You should not draw any inference against or show any bias against a lawyer s client because of the making of an objection. EXPERTS The Rules of Evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. But, expert witnesses who, by education and experience, have been recognized by 2

3 the Court as expert in some art, science, profession or occupation may state an opinion as to relevant and material matters in which they profess to be expert. You should consider each expert s opinion received in evidence in this case and give it weight as you think it deserves. You may consider the education and experience of the expert and the information upon which the expert bases the opinion. Even though the expert has been accepted by the Court, if you decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of an opinion are not sound, you may reject the opinion entirely. In evaluating the testimony of the experts, such as medical experts or physicians, there are few fixed rules. You may, however, properly place greater emphasis upon the testimony given by attending or treating physicians, than upon that given by those experts who merely examined a patient for purposes of testifying in Court. As I stated earlier, it is my duty to tell you the law as it applies to this case. It is your duty to follow the law. I will now instruct you on the law. PLAINTIFF S BURDEN OF PROOF The burden is on the plaintiff in civil cases to prove every essential element of his claim by a preponderance of the evidence. Proof by a preponderance of the evidence means that the evidence taken as a whole shows that a fact sought to be proved is more probable than not. APPLICABLE LAW This is a suit seeking damages for injury caused by the act of another. Under our Civil Code such an act is called an offense or quasi-offense and the suit is generally known as a tort suit. The basic law in Louisiana in this type of suit is found in Article 2315 of our Civil Code. Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it. The word fault in that article is a key word. While the Civil Code does not further define the word, it may perhaps best be explained by saying that it signifies that conduct which a person should not have engaged in that is, that they have acted as they should not have acted, or that they have failed to do something that they should have done. In this case, one of the basic standards applicable is negligence. Negligence is not presumed. The mere fact that an accident happened, standing alone, does not permit you to draw the inference that the accident was caused by anyone's negligence. Accidents do occur for which 3

4 one is at fault and for which no one is liable. The standard applicable to this case is a requirement that the person exercise that degree of care which might be reasonably expected from an ordinarily prudent person under the same or similar circumstances. You will see that this is a very relative term. The care which we reasonably expect from any ordinarily prudent person will vary according to the circumstances facing them. CAUSE IN FACT If the plaintiff carries his burden of proving that the defendant was at fault, he must then prove by a preponderance of the evidence that the defendant s fault was a cause in fact of his injuries. An injury is caused by an act or omission whenever it appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the accident or injury, and that the injury was either a direct result of a reasonably probable consequence of that act. It is the plaintiff's burden to prove, by a preponderance of the evidence that his injury was caused by this accident. COMPARATIVE FAULT The law requires that you consider the fault of every person or entity involved in the incident, regardless of whether the person is party to the action or a nonparty, and regardless of the person s insolvency, ability to pay, immunity by Statute, including the Worker s Compensation Act, or that the other person s identity is not known or reasonably ascertainable. You will be given a Jury Verdict Form at the conclusion of trial which permits you to consider the fault of every person involved in this incident. If you conclude by a preponderance of the evidence that a person including the plaintiff, was at fault, and that the fault was a legal cause of any damage suffered by the plaintiffs, you must assign a percentage of fault to that person or entity. When you have completed the Jury Verdict Form, the percentage of fault you have assigned, if any, must total 100% when added together. DAMAGES As for damages, if any in this case, under Louisiana law a tortfeasor is obligated to make reparation, in money, for the damage he,she or it has caused a victim. The fact that I instruct you on damages or on the element of damages, in no way implies that there is or is not liability. If you find no liability, you do not get to the question of damages. If you find that there is liability and that the plaintiff has a right to recover in accordance with the 4

5 facts, which you have ascertained from the evidence, and the instructions which I have given you, then you must get to the question of damages. You will have to translate those damages into dollars and cents. If you find the defendant liable, then the plaintiff is entitled to recover a sum of money representing the damages sustained. Damages are of two kinds: general damages and special damages General damages include physical pain and suffering, mental anguish, inconvenience, loss of enjoyment of life, anxiety, and other personal injuries sustained by the plaintiff. These damages cannot be measured definitely in terms of money and it is up to you, as members of the jury to determine a fair amount of money for these damages. Special damages include recovery of items which are susceptible to proof. Included in this category are medical expenses. Special damages must be proved by a preponderance of the evidence and cannot be recovered on proof which is speculative and remote. In other words, it must be established by reasonable, credible evidence. If you are convinced by a preponderance of the evidence that plaintiff has sustained injuries of a permanent nature which will endure for the balance of his/her life, then in evaluating the fair compensation to be awarded for such future pain you should consider the plaintiff s future life expectancy. In this case, it is alleged by plaintiff that the injury she/he sustained in the accident caused a worsening or aggravation of a pre-existing condition that she/he suffered from at the time of her/his later injury. A defendant takes his victim as he finds him and is responsible for all the natural and probable consequences of his negligent conduct. The fact that a victim s reaction to an injury was more severe than that of most people does not lessen the defendant s responsibility to compensate the victim for the consequences of the accident. Thus, even if it is shown that plaintiff had a pre-existing back or neck condition, prior to the incident sued upon herein, she/he may still recover damages for any aggravation, flare-up, or exacerbation caused by this incident. The amount of damages is left to your judgment and determination and you will arrive at a conclusion of the matter in light of the evidence as you have heard it. I remind you that in the assessment of damages, you have wide discretion terms of both the decision about and the level of the award. In reaching a verdict on the question of damages, I caution you not to include anything for the payment of income taxes, court costs and attorney s fees; the law does not consider these as damages suffered by the plaintiff. 5

6 STATEMENT OF ATTORNEYS The determination of damages is solely your function and must be based on competent evidence, and not upon figures suggested by an attorney. Statements of an attorney in this case as to his or her estimate or dollar amounts to be awarded as damages for pain and suffering, metal anguish, and similar claims, are not evidence and are to be disregarded by you unless supported by evidence. At the beginning of the trial I told you that you were not to discuss the case among yourselves. I now remove that restriction. It is now your duty to consult with one another and to deliberate, with a view toward reaching agreement. You each must decide the case for yourself, but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when you are convinced that you are wrong. However, you should not surrender your honest conviction for the mere purpose of returning a verdict or solely because of the opinion of the other jurors. Your contribution to the judicial system will be to arrive at a just and proper verdict. To that end, I remind you that in your deliberations in the jury room there can be no triumph except the ascertainment and declaration of the truth. You are twelve in number. Louisiana law requires that nine of you agree in order to render a verdict for either side. When nine of you are of the same opinion about this case, that ends you deliberation and that opinion should be your verdict. You are being asked to return a verdict on the form which I will supply to you. The first thing you should do when you retire to the jury room is to choose from your number a person to represent you in returning the verdict. That person may be any one of you and will be the foreperson. The foreperson will preside over your deliberation and will be your spokesperson here in court. When you have reached a verdict, your representative will record that verdict on the form which I have supplied, sign and date it. You will then return with your verdict to the courtroom. Finally, I remind you that you represent your community in the determination of this dispute. The community appreciates your services on this jury, and at the same time expects you to reach a fair and impartial verdict. Members of the jury, you will now retire to consider your verdict. 6