Walker, Lamont v. Armson, Ryan et al

Filing 129

ORDER distributing voir dire questions, jury instructions and verdict form. Signed by Magistrate Judge Stephen L. Crocker on 8/16/11. (Attachments: # 1 Voir Dire Questions, # 2 Introductory Jury Instructions, # 3 Post-Trial Jury Instructions, # 4 Special Verdict) (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LAMONT D. WALKER,
Plaintiff,

10-cv-313-slc

v.
RYAN ARMSON and JAMES KOTTKA,
Defendants.

I. INTRODUCTORY JURY INSTRUCTIONS

Members of the jury, we are about to begin the trial of the case. Before it begins,
I will give you some instructions to help you understand how the trial will proceed, how
you should evaluate the evidence, and how you should conduct yourselves during the
trial.
The party who begins the lawsuit is called the plaintiff. In this action, the
plaintiff is Lamont Walker. The parties against whom the suit is brought are called the
defendants. In this action, the defendants are Ryan Armson and James Kottka.
Plaintiff contends that defendants violated his right to adequate medical care
under the Eighth Amendment to the United States Constitution by failing to give him
his asthma inhaler when he complained that he was suffering from asthma symptoms.
Defendants deny that Walker asked for his inhaler or knowing that he was having trouble
breathing.

The case will proceed as follows:
First, plaintiff's counsel will make an opening statement outlining plaintiff's case.
Immediately after plaintiff's statement, defendants’ counsel will also make an opening
statement outlining defendants’ case.

What is said in opening statements is not

evidence; it is simply a guide to help you understand what each party expects the
evidence to show.

Second, after the opening statements, the plaintiff will introduce evidence in
support of his claim. At the conclusion of the plaintiff's case, the defendants may
introduce evidence. The defendants are not required to introduce any evidence or to call
any witnesses. If the defendants introduce evidence, the plaintiff may then introduce
rebuttal evidence.
Third, after the evidence is presented, the parties will make closing arguments
explaining what they believe the evidence has shown and what inferences you should
draw from the evidence. What is said in closing argument is not evidence. The plaintiff
has the right to give the first closing argument and to make a short rebuttal argument
after the defendants’ closing argument.
Fourth, I will instruct you on the law that you are to apply in reaching your
verdict.
Fifth, you will retire to the jury room and begin your deliberations.
You will hear the term "burden of proof" used during this trial. In simple terms,
the phrase "burden of proof" means that the party who makes a claim has the obligation
of proving that claim. At the end of the trial, I will instruct you on the proper burden
of proof to be applied in this case.
The trial day will run from 9:00 a.m. until 5:00 p.m. You will have at an hour for
lunch and two additional short breaks, one in the morning and one in the afternoon.
During recesses you should keep in mind the following instructions:
First, do not discuss the case either among yourselves or with anyone else during
the course of the trial. The parties to this lawsuit have a right to expect from you that
you will keep an open mind throughout the trial. You should not reach a conclusion
until you have heard all of the evidence and you have heard the lawyers' closing
arguments and my instructions to you on the law, and have retired to deliberate with the
other members of the jury. I must warn you, in particular, against commenting about the
trial in an e-mail or a blog or Twitter. There have been news accounts recently about
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cases that have had to be re-tried because a member of the jury communicated
electronically about the case during the trial. You can imagine what this would mean
in the cost of a re-trial, the inconvenience to your fellow jurors whose work would have
gone for nothing and the stress experienced by the parties.
Second, do not permit any third person to discuss the case in your presence. If
anyone tries to talk to you despite your telling him not to, report that fact to the court
as soon as you are able. Do not discuss the event with your fellow jurors or discuss with
them any other fact that you believe you should bring to the attention of the court.
Third, although it is a normal human tendency to converse with people with
whom one is thrown in contact, please do not talk to any of the parties or their attorneys
or witnesses. By this I mean not only do not talk about the case, but do not talk at all,
even to pass the time of day. In no other way can all parties be assured of the absolute
impartiality they are entitled to expect from you as jurors.
Fourth, do not read about the case in the newspapers, or listen to radio or
television broadcasts about the trial. If a newspaper headline catches your eye, do not
examine the article further. Media accounts may be inaccurate and may contain matters
that are not proper for your consideration. You must base your verdict solely on the
evidence produced in court.
Fifth, no matter how interested you may become in the facts of the case, you must
not do any independent research, investigation or experimentation. Do not look up
materials on the internet or in other sources. Again, you must base your verdict solely
on the evidence produced in court.

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
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many factors, including the witness’s opportunity and ability to see or hear or know the
things the witness testified about; the quality of the witness’s memory; the witness’s
appearance and manner while testifying; the witness’s interest in the outcome of the
case; any bias or prejudice the witness may have; other evidence that may have
contradicted the witness’s testimony; and the reasonableness of the witness’s testimony
in light of all the evidence. The weight of the evidence does not necessarily depend upon
the number of witnesses who testify.

Depositions
During the course of a trial the lawyers will often refer to and read from
depositions.

Depositions are transcripts of testimony taken while the parties are

preparing for trial. Deposition testimony is given under oath just like testimony on the
trial. You should give it the same consideration you would give it had the witnesses
testified here in court.

Objections
During the trial, you will hear the lawyers make objections to certain questions
or to certain answers of the witnesses. When they do so, it is because they believe the
question or answer is legally improper and they want me to rule on it. Do not try to
guess why the objection is being made or what the answer would have been if the
witness had been allowed to answer it.
If I tell you not to consider a particular statement that has already been made, put
that statement out of your mind and remember that you may not refer to it during your
deliberations.

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Questions
During the trial, I may sometimes ask a witness questions. Please do not assume
that I have any opinion about the subject matter of my questions.
If you wish to ask a question about something you do not understand, write it
down on a separate slip of paper. If, when the lawyers have finished all of their
questioning of the witness, the question is still unanswered to your satisfaction, raise
your hand, and I will take the written question from you, show it to counsel, and decide
whether it is a question that can be asked. If it cannot, I will tell you that. I will try to
remember to ask about questions after each witness has testified.

Notetaking
If you want to take notes, there are notepads and pencils for taking notes next to
the jury bench. This does not mean you have to take notes; take them only if you want
to and if you think they will help you to recall the evidence during your deliberations.
Do not let notetaking interfere with your important duties of listening carefully to all
of the evidence and of evaluating the credibility of the witnesses. Keep in mind that just
because you have written something down it does not mean that the written note is
more accurate than another juror's mental recollection of the same thing. No one of you
is the "secretary" for the jury, charged with the responsibility of recording evidence. Each
of you is responsible for recalling the testimony and other evidence.
Although you can see that the trial is being reported, you should not expect to be
able to use trial transcripts in your deliberations. You will have to rely on your own
memories.

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Evidence
Evidence at a trial includes the sworn testimony of the witnesses, exhibits
admitted into the record, facts judicially noticed, and facts stipulated by counsel. You
may consider only evidence that is admitted into the record.
In deciding the facts of this case, you are not to consider the following as
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.
Evidence may be either direct or circumstantial. Direct evidence is direct proof
of a fact, such as testimony by a witness about what the witness said or heard or did.
Circumstantial evidence is proof of one or more facts from which you could find another
fact. You should consider both kinds of evidence. The law makes no distinction
between the weight to be given to either direct or circumstantial evidence. You are to
decide how much weight to give any evidence.

Contradictory or Impeaching Evidence
A witness may be discredited by contradictory evidence or by evidence that at
some other time the witness has said or done something, or has failed to say or do
something, that is inconsistent with the witness's present testimony.
If you believe any witness has been discredited, it is up to you to decide how
much of the testimony of that witness you believe.
If a witness is shown to have given false testimony knowingly, that is, voluntarily
and intentionally, about any important matter, you have a right to distrust the witness's
testimony about other matters. You may reject all the testimony of that witness or you
may choose to believe some or all of it.

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The general rule is that if you find that a witness said something before the trial
that is different from what the witness said at trial you are to consider the earlier
statements only as an aid in evaluating the truthfulness of the witness's testimony at
trial. You cannot consider as evidence in this trial what was said earlier before the trial
began.
There is an exception to this general rule for witnesses who are the actual parties
in the case. If you find that any of the parties made statements before the trial began
that are different from the statements they made at trial, you may consider as evidence
in the case whichever statement you find more believable.

Drawing of Inferences
You are to consider only the evidence in the case. But in your consideration of
the evidence, you are not limited solely to what you see and hear as the witnesses testify.
You are permitted to draw, from facts you find have been proved, such reasonable
conclusions as seem justified in the light of your own experience and common sense.

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