Centennial Bank v. Powell

Filing 252

COURT'S FINAL PRELIMINARY INSTRUCTIONS. Filed at the Direction of the Court on 12/10/2018. (jak)

-1Court’s Final Preliminary Instructions
10 December 2018

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Centennial Bank v. Wood

1
Ladies and gentlemen, here are some initial instructions about
this case and your duties as jurors. At the end of the trial I will give
you more instructions. I’ll also give you instructions during the
trial. Unless I specifically tell you otherwise, all my instructions—
both those I give you now and those I give you later—are equally
binding on you and must be followed.
I’m the judge of the law and you’re the judges of the facts.
Your duty is to determine the truth from the evidence and the
reasonable inferences arising from the evidence. Don’t guess.
Don’t speculate.
This is a civil case about a trust and how family members have
handled trust income. Mrs. Mary Stiny is the lifetime beneficiary
of a trust that she and her now-deceased husband established.
Rena Wood is Mrs. Stiny’s daughter. Wood helped her mother
manage the trust’s assets, including some apartments in California.
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Centennial Bank v. Wood

Mrs. Stiny has gotten older, and has now been found incompetent
because of dementia.

Centennial Bank has been appointed

guardian of Mrs. Stiny’s estate. The Bank filed this case alleging
that Wood has spent trust income, which belonged to Mrs. Stiny,
for herself and others. Wood responds that she spent the trust
income only as directed or approved by Mrs. Stiny before she
became incompetent.
You will decide what the truth is. You are entitled to consider
all the evidence in the light of your own observations and life
experiences. Use reason and common sense to draw conclusions
from facts that have been established by the evidence. Apply those
facts to the law that I give you in these and in my other instructions
to reach your verdict. While you are the sole judges of the facts,
you must follow the law whether you agree with it or not.
Don’t allow any sympathy or any prejudice to influence you.
The law demands of you a just verdict, unaffected by anything
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Centennial Bank v. Wood

except the evidence, your common sense, and the law as I give it to
you.
You should not take anything I may say or do during the trial
as indicating what I think of the evidence or what I think your
verdict should be.

-4Court’s Final Preliminary Instructions
10 December 2018

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Centennial Bank v. Wood

2.
The evidence includes the testimony of witnesses, documents,
and other things received as exhibits, any facts that have been
stipulated─that is, formally agreed to by Centennial Bank and
Wood─and any facts that have been judicially noticed─that is, facts
which I say you must accept as true even without evidence.
Certain things are not evidence:
1.

Statements, arguments, questions, and comments by

lawyers are not evidence.
2.

Objections are not evidence. Lawyers have a right to

object when they believe something is improper.

Don’t be

influenced by the objections. If I sustain an objection to a question,
ignore the question and don’t try to guess what the answer might
have been.
3. Testimony that I strike from the record, or tell you to
disregard, is not evidence. Ignore it.
-5Court’s Final Preliminary Instructions
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Centennial Bank v. Wood

4. Anything you see or hear about this case outside the
courtroom is not evidence. Ignore it.
A particular item of evidence is sometimes received for a
limited purpose only. That is, it can be used by you for one
particular purpose, and not for any other purpose. I will tell you
when that occurs, and instruct you on the purposes for which they
item can and cannot be used.
Finally, some of you may have heard the terms “direct
evidence” and “circumstantial evidence.” Don’t be concerned with
those terms. The law makes no distinction between direct and
circumstantial evidence. Give all evidence the weight and value
you believe it is entitled to receive.

-6Court’s Final Preliminary Instructions
10 December 2018

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Centennial Bank v. Wood

3.
In deciding what the facts are, you must decide what
testimony to believe and what testimony you don’t believe. You
may believe all of what a witness said, or only part of it, or none of
it.
In deciding what testimony to believe, consider several
things: the witness’s intelligence; the opportunity the witness had
to have seen or heard the things testified about; the witness’s
memory;

any motives that witness may have for testifying a

certain way; the manner of the witness while testifying; whether
that witness said something different at an earlier time; the general
reasonableness of the testimony; and the extent to which the
testimony is consistent with other evidence you believe.
A caution about considering a witness’s demeanor while
testifying. Many folks are nervous just being in court. And there
are bold liars and shy truth-tellers. Use your common sense, and
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Centennial Bank v. Wood

be discerning, when judging someone’s credibility based on their
demeanor on the stand.
In deciding whether or not to believe a witness, keep in mind
that people sometimes hear or see things differently and
sometimes forget things. You need to consider therefore whether
a contradiction is an innocent misrecollection, a lapse of memory,
or a lie.

That may depend on whether it has to do with an

important fact or only a small detail.

-8Court’s Final Preliminary Instructions
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Centennial Bank v. Wood

4.
The party with the burden of proof must prove the facts by a
preponderance of the evidence.

To prove something by a

“preponderance of the evidence” is to prove that it is more likely
true than not true.

It’s determined by considering all of the

evidence and deciding which evidence is more believable.

The

preponderance of the evidence is not necessarily established by the
greater number of witnesses or exhibits a party has presented. If
Centennial Bank has the burden of proof on a fact, and the evidence
is equally balanced, then Centennial Bank has not carried its
burden. If Rena Wood has the burden of proof on a fact, and the
evidence is equally balanced, then Rena Wood has not carried her
burden.
You’ve probably heard of the term “proof beyond a
reasonable doubt.” This is a stricter standard, which applies only

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Centennial Bank v. Wood

in criminal cases. It doesn’t apply in civil cases like this one. Put
the reasonable-doubt standard out of your minds.

- 10 Court’s Final Preliminary Instructions
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Centennial Bank v. Wood

5.
When the lawyers have finished questioning each witness,
you may propose questions to clarify the testimony.

In your

questions, follow these rules:
• Don’t express any opinion about the testimony;
• Don’t argue with a witness; and
• Don’t sign your name or juror number.
Submit your questions in writing by passing them to the
Court Security Officer. I will review each one with the lawyers. If
the question is proper, the lawyers or I will ask it.
Don’t put any special weight on a question just because a
juror suggested it. Don’t put any special weight on the question
because I may be the one asking it. And consider the witness’s
answer just like any other piece of evidence.
You may not get your question answered. For example, I may
decide that the question is not proper under the rules of evidence.
- 11 Court’s Final Preliminary Instructions
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Centennial Bank v. Wood

And even if the question is proper, you may not get an immediate
answer. For example, a later witness or a coming exhibit may
provide the answer.
Don’t feel slighted or disappointed if your question isn’t
asked or answered immediately. Remember, you aren’t advocates
for either side; you’re impartial judges of the facts.

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6.
At the end of the trial you must make your decisions based on
what you recall of the evidence. You will not have a written
transcript to consult. You may pay close attention to the testimony
as it is given.
You can take notes, though, to help you remember what a
witness said. If you do, please keep your notes to yourself. Don’t
share them with your fellow jurors during the trial. At the end of
trial, when you go to the jury room to deliberate and decide the
case, then you can share them with each other. And don’t let note
taking distract you so that you miss other answers by the witness.
When you leave at night, your notes will be locked up. No
one will read them. At the end of the trial, all notes will be
destroyed.

- 13 Court’s Final Preliminary Instructions
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Centennial Bank v. Wood

7.
During the trial, from time to time I’ll have to talk just the
lawyers.

We’ll have a bench conference or a recess.

understand that while you’re waiting, we’re working.

Please
The

purpose of these conference is to discuss evidence questions, plus
avoid confusion and error. We’ll keep the number and length of
these conference to a minimum.

- 14 Court’s Final Preliminary Instructions
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Centennial Bank v. Wood

8.
Finally, to ensure fairness, you must obey the following rules:
First, do not talk among yourselves about this case, or about
anyone involved with it, until the end when you go to the jury
room to decide on your verdict.
Second, do not talk with anyone else about this case, or about
anyone involved with it, until the end of the trial after I’ve
discharged you as jurors.
Third, when you are outside the courtroom, don’t let anyone
tell you anything about the case, or about anyone involved with it,
until the trial has ended and I’ve discharged you as jurors. If
someone tries to talk to you about the case during the trial, report
it to the court security officer immediately.
Fourth, during the trial don’t talk with any of the parties,
lawyers, or witnesses involved in this case─don’t even pass the
time of day with any of them. It is important not only that you do
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Centennial Bank v. Wood

justice, but that you also appear to do justice. If a person from one
side of the lawsuit sees you talking to a person from the other side
of the lawsuit, a suspicion about your fairness might arise. I
suspend the rules of good manners. Please ignore the lawyers,
parties, witnesses, me, and my staff outside the courtroom.
Fifth, you’ll have to tell your family, friends, teachers,
coworkers, or employer that you’ve been selected as a juror and
must be in court. Warn them not to ask you for details. Don’t name
the case, the parties, or tell them what it’s about. Don’t listen to
anything someone may say to you, or in your presence, about the
case. You must not communicate with anyone about the parties,
witnesses, participants, claims, evidence, or anything else about
the case, or tell anyone anything about the jury’s deliberations in
this case, until after I accept your verdict.
During the trial, while you are in the courthouse, and after
you leave for the day, don’t provide any information to anyone by
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Centennial Bank v. Wood

any means about this case. For example, don’t talk face-to-face
with someone. And don’t use any electronic device or media such
as the telephone, a cell phone, a smart phone, iPad, computer, the
Internet, any Internet service, any text or instant messaging service,
any Internet chat room, blog, or website such as Facebook,
Instagram, Snapchat, YouTube, or Twitter to communicate to
anyone any information about this case. After the trial is done, and
I’ve accepted your verdict, then you can talk or post about the case.
Sixth, don’t do any Internet research─using Google, for
example─about the case. Don’t do any research using libraries,
reading the newspaper, or in any other way making any
investigation about this case on your own. Don’t visit or view any
place discussed in this case. Don’t use Internet maps or Google
Earth or any other program or device to search for or to view any
place discussed in the testimony.

- 17 Court’s Final Preliminary Instructions
10 December 2018

And don’t research any

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information about this case, the law, or the people involved,
including the parties, the witnesses, the lawyers, or me.
Ask each juror: Juror No. –, on your oath, do you promise
not to post anything about your jury service on any social media
such as Facebook, Twitter, Snapchat, or Instagram during the
trial? On your oath, do you promise not to use the Internet to
look up anything about the case, the matters discussed, the
lawyers, Mrs. Stiny, Rena Wood, Centennial Bank, any witness,
me, or the law?
Seventh, don’t read any news articles in print, on the Internet,
or in any blog, about the case or about anyone involved with it, or
listen to any radio or television report about the case or about
anyone involved with it. In fact, until the trial is over I suggest that
you take a news holiday:

avoid reading newspapers; avoid

watching TV news; avoid radio newscasts; and avoid news on the
Internet.

I also suggest that you avoid social media, such as

- 18 Court’s Final Preliminary Instructions
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Centennial Bank v. Wood

Facebook and Twitter. I don’t know whether there will be any
news report about this case. But if there are, you might stumble
into reading or listening to something before you could do
anything about it. I assure you: by the time you’ve heard all the
evidence in this case, you’ll know more about it than anyone could
learn through the news media.
The reason for all these rules is to protect the integrity of the
trial.

- 19 Court’s Final Preliminary Instructions
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Centennial Bank v. Wood

9.
Here is how the trial will go:
First, a lawyer for each side will make an opening statement.
These statements aren’t evidence; they’re simply a summary of
what the lawyers expect the evidence to be.
Next, each side will present their evidence─witnesses,
documents, photographs, and other things to you. The lawyers
will question the witnesses and you can too, as I explained.
After all the evidence is in, I’ll instruct you on the law. Then
the lawyers will make their closing arguments. They’ll summarize
the evidence and ask you to decide the issues for their clients.
Closing arguments are not evidence. Finally, you’ll go to the jury
room, deliberate, and answer some questions I’ll give to you.

- 20 Court’s Final Preliminary Instructions
10 December 2018

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Centennial Bank v. Wood