Writing Better Jury Instructions: Antitrust as an Example

Posted by Social Science Research Network

Writing Better Jury Instructions: Antitrust as an Example

Joshua P. Davis (University of San Francisco), Shannon Wheatman & Cristen Stephansky (Kinsella Media LLC)

Abstract:         Understanding the law is difficult. Getting juries to understand the law is more difficult. Yet we provide evidence that it can be done, even in complex areas such as antitrust. This Article tests whether jury instructions can be written in a way that maintains fidelity to the law – indeed, improves on fidelity to the law compared to standard jury instructions – while also permitting jurors to understand the relevant legal standards. But it goes further than that. It proposes making empirical testing an integral part of drafting model jury instructions. It also shows that such empirical testing is feasible by harnessing the power of the Internet. It undertakes those efforts by drafting and testing jury instructions in two challenging areas of antitrust law. The results of the empirical testing provide reason for optimism about the prospects of juries understanding the law, if those who draft jury instructions test whether they are comprehensible and modify draft jury instructions in light of empirical results.