Cypress Advisors, Inc. v. Davis

Filing 282

MINUTE ORDER. The Court has prepared a proposed set of introductory jury instructions, which are attached to this Order, in the event that this case goes to trial on February 10, 2020. See United States v. Murillo, 19-cr-00480 (set February 10, 2020 for two days). These instructions will be read to the jury after jury selection, but before opening statements Any objections to or comments about the proposed introductory jury instructions shall be filed on or before Thursday, February 6, 2020, by Chief Judge Philip A. Brimmer on 2/4/2020. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-01935-PAB-MEH
(Consolidated with Civil Action No. 17-cv-01219-PAB-MEH)
Civil Action No. 16-cv-01935-PAB-MEH
CYPRESS ADVISORS, INC.,
Plaintiff/Counter Defendant,
v.
KENT MCCARTY DAVIS,
Defendant/Counter Claimant/Third-Party Plaintiff,
v.
DEAN ZUCCARELLO,
Third-Party Defendant.
Civil Action No. 17-cv-01219-PAB-MEH
CYPRESS ADVISORS, INC.,
Plaintiff,
v.
KENT MCCARTY DAVIS and
C SQUARED ADVISORS, LLC,
Defendants.

MINUTE ORDER
Entered by Chief Judge Philip A. Brimmer
The Court has prepared a proposed set of introductory jury instructions, which
are attached to this Order, in the event that this case goes to trial on February 10, 2020.
See United States v. Murillo, 19-cr-00480 (set February 10, 2020 for two days). These
instructions will be read to the jury after jury selection, but before opening statements.

Any objections to or comments about the proposed introductory jury instructions shall
be filed on or before Thursday, February 6, 2020.
DATED February 4, 2020.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 16-cv-01935-PAB-MEH
(Consolidated with Civil Action No. 17-cv-01219-PAB-MEH)
Civil Action No. 16-cv-01935-PAB-MEH
CYPRESS ADVISORS, INC.,
Plaintiff/Counter Defendant,
v.
KENT MCCARTY DAVIS,
Defendant/Counter Claimant/Third-Party Plaintiff,
v.
DEAN ZUCCARELLO,
Third-Party Defendant.
Civil Action No. 17-cv-01219-PAB-MEH
CYPRESS ADVISORS, INC.,
Plaintiff,
v.
KENT MCCARTY DAVIS and
C SQUARED ADVISORS, LLC,
Defendants.

INTRODUCTORY JURY INSTRUCTIONS [PROPOSED]

Instruction No. 1
We are about to begin the trial of the case you heard about during the jury
selection. Before the trial begins, I am going to give you instructions that will help you
to understand what will be presented to you and how you should conduct yourself
during the trial.
During the trial you will hear me use a few terms that you may not have heard
before. Let me briefly explain some of the most common to you. The party who sues is
called the plaintiff. In this action, the plaintiff is Cypress Advisors. The parties being
sued are called the defendants. In this case, the defendants are Kent Davis and C
Squared Advisors. Mr. Davis has filed counterclaims against plaintiff and has filed
claims against third party-defendant Dean Zuccarello, the Chief Executive Officer of
Cypress Advisors. Because Cypress Advisors and Mr. Zuccarello are aligned with one
another, I may informally refer to them as “plaintiffs” or as being on the same side.
You will sometimes hear me refer to “counsel.” “Counsel” is another way of
saying “lawyer” or “attorney.” I will sometimes refer to myself as the “Court.”
When I “sustain” an objection, I am excluding that evidence. When you hear that
I have “overruled” an objection, I am permitting that evidence to be admitted.
When I say “admitted into evidence” or “received into evidence,” I mean that this
particular statement or the particular exhibit may be considered by you in making the
decisions you must make at the end of the case.
By your verdict, you will decide disputed issues of fact. I will decide all questions
of law that arise during the trial. Before you begin your deliberation at the close of the
case, I will instruct you in more detail on the law that you must follow and apply.

Because you will be asked to decide the facts of this case, you should give
careful attention to the testimony and evidence presented. During the trial you should
keep an open mind and should not form or express any opinion about the case until you
have heard all of the testimony and evidence, my instructions to you on the law, and the
lawyers’ closing arguments.
While the trial is in progress, you must not discuss the case in any manner
among yourselves or with anyone else. In addition, you should not permit anyone to
discuss the case in your presence. You should avoid reading any news articles that
might be published about the case. You should also avoid watching or listening to any
television or radio comments about the trial.
From time to time during the trial, I may make rulings on objections or motions
made by the parties. It is a lawyer’s duty to object when the other side offers testimony
or other evidence that the lawyer believes is not admissible. You should not be unfair
or partial against a lawyer or the lawyer’s client because the lawyer has made
objections. If I sustain or uphold an objection to a question that goes unanswered by
the witness, you should not draw any inferences or conclusions from the question. You
should not infer or conclude from any ruling or other comment I may make that I have
any opinions on the merits of the case favoring one side or the other. I do not favor one
side or the other.
The lawyers are not allowed to speak with you during this case. When you see
them at a recess or pass them in the halls and they do not speak to you, they are not
being rude or unfriendly; they are simply following the law.
During the trial, it may be necessary for me to talk with the lawyers out of your
hearing about questions of law or procedure. Sometimes, you may be excused from

the courtroom during these discussions. I will try to limit these interruptions as much as
possible, but you should remember the importance of the matter you are here to
determine and should be patient even though the case may seem to go slowly.

Instruction No. 2 – Order of Trial
The case will proceed as follows:
First, each side may make an opening statement. What is said in opening
statements is not evidence, but is simply an outline to help you understand what each
party expects the evidence to show. A party is not required to make an opening
statement.
After the opening statements, the plaintiff will present evidence in support of its
claims and the defendants may cross-examine the witnesses. At the conclusion of the
plaintiff’s case, the defendants may introduce evidence in defense of plaintiff’s claims
and in support of Mr. Davis’s counterclaims and third-party claims. The plaintiff’s and
Mr. Zuccarello’s counsel may then cross-examine the witnesses. The defendants are
not required to introduce any evidence or to call any witnesses in order to defend
against the plaintiff’s claims. If a party introduces evidence in defense of a claim, the
opposing party may then present rebuttal evidence.
After the evidence is presented, I will instruct you on the law that you are to apply
in reaching your verdict.
Finally, the parties’ lawyers will make closing arguments explaining what they
believe the evidence has shown. What is said in the closing arguments is not evidence.
You will then decide the case.

Instruction No. 3 – Evidence in the Case
The evidence in the case will consist of the following:
1.

The sworn testimony of the witnesses, no matter who called a witness.

2

The sworn deposition testimony of a witness who is not physically present, no
matter who called the witness.

3.

All exhibits received in evidence, regardless of who may have produced the
exhibits.
Statements and arguments of the lawyers are not evidence in the case, unless

made as an admission or stipulation of fact. A “stipulation” is an agreement by the
parties that certain facts are true. When the lawyers stipulate or agree to the existence
of a fact, you must, unless otherwise instructed, accept the stipulation as evidence and
regard that fact as proved.
If I sustain an objection to any evidence or if I order evidence stricken, that
evidence must be entirely ignored.
Some evidence may be admitted for a limited purpose only. When I instruct you
that an item of evidence has been admitted for a limited purpose, you must consider it
only for that limited purpose and for no other purpose.
Just to be clear, the following things are not evidence: statements and
arguments of the lawyers, questions and objections of the lawyers, testimony that I
instruct you to disregard, and anything you may see or hear when the Court is not in
session even if what you see or hear is done or said by one of the parties or by one of
the witnesses.
You are to consider only the evidence in the case. But in your consideration of
the evidence you are not limited to the statements of the witnesses. In other words,

you are not limited solely to what you see and hear as the witnesses testified. You may
draw from the facts that you find have been proved such reasonable inferences or
conclusions as you feel are justified in light of your experience.
At the end of the trial you will have to make your decision based on what you
recall of the evidence. You will not have a written transcript to consult, and it is difficult
and time consuming for the reporter to read back lengthy testimony. I urge you to pay
close attention to the testimony as it is given.

Instruction No. 4 – Direct and Circumstantial Evidence
There are two types of evidence from which a jury may properly find the truth as
to the facts of a case. One is direct evidence – such as the testimony of an eyewitness
or ear witness. The other is indirect or circumstantial evidence – the proof of a chain of
circumstances pointing to the existence or nonexistence of certain facts.
As a general rule, the law makes no distinction between direct or circumstantial
evidence, but requires that the jury find the facts in accordance with the preponderance
of all the evidence in the case, both direct and circumstantial.

Instruction No. 5 – Credibility of Witnesses
In deciding the facts, you may have to decide which testimony to believe and
which testimony not to believe. You may believe everything a witness says, part of it, or
none of it. In considering the testimony of any witness, you may take into account
many factors, including the witness’ opportunity and ability to see or hear or know the
things the witness testified about; the quality of the witness’ memory; the witness’
appearance and manner while testifying; the witness’ interest in the outcome of the
case; any bias or prejudice the witness may have; other evidence that may have
contradicted the witness’ testimony; and the reasonableness of the witness’ testimony
in light of all the evidence. The weight of the evidence does not necessarily depend
upon the number of witnesses who testify.

Instruction No. 6 – Burden of Proof
The plaintiff has the burden of proving its claims by a preponderance of the
evidence. If the plaintiff fails to establish any essential element of a claim by a
preponderance of the evidence, you should find for the defendants on that claim. Mr.
Davis has the burden of proving his counterclaims and third-party claims by a
preponderance of the evidence. If Mr. Davis fails to establish any essential element of
a claim by a preponderance of the evidence, you should find for the plaintiff or thirdparty defendant on that claim.
To “establish by a preponderance of the evidence” means to prove that
something is more likely so than it is not so. In other words, a preponderance of the
evidence in the case means such evidence, when considered and compared to that
opposed to it, has more convincing force, and produces in your mind a belief that what
is sought to be proved is more likely true than not true. This standard does not require
proof to an absolute certainty, since proof to an absolute certainty is seldom possible in
any case.
“Burden of proof” means the obligation a party has to prove its claims by a
preponderance of the evidence. The party with the burden of proof can use evidence
produced by any party to persuade you. If a party fails to meet its burden of proof as to
one of its claims, or if the evidence weighs so evenly that you are unable to say that
there is a preponderance on either side, you must reject that claim.

Instruction No. 7 – Notetaking Permitted
Before concluding these opening instructions, there are some instructions which
I should give concerning the way that you must, as jurors, conduct yourself during the
course of the trial. During this trial, I will permit you to take notes. Of course, you are
not obliged to take notes. If you do not take notes, you should not be influenced by the
notes of another juror, but should rely upon your own recollection of the evidence.
A word of caution is in order. You must not allow your notetaking to distract you
from the proceedings. Frequently, there is a tendency to attach too much importance to
what a person writes down. Some testimony that is considered unimportant at the time
presented, and thus not written down, may take on greater importance later in the trial
in light of all the evidence presented, the final arguments, and my instructions on the
law.
Accordingly, you are instructed that your notes are only a tool to aid your own
individual memory and you should not compare your notes with other jurors in
determining the content of any testimony or in evaluating the importance of any
evidence. Your notes are not evidence, and are by no means a complete outline of the
proceedings or a list of the highlights of the trial. Your memory should be your greatest
asset when it comes time to deciding this case.

Instruction No. 8 – Questions by Jurors Prohibited
I do not permit jurors to ask questions of witnesses or of the lawyers. If you are
unable to hear a witness or a lawyer, please raise your hand immediately and I will see
that this is corrected.