IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





JAMES I. McLARTY and RONNIE D. LEWIS,
Plaintiffs,

No. C 97-4040-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

WOODBURY COUNTY, IOWA, ex rel. WOODBURY COUNTY BOARD OF SUPERVISORS,
Defendant.

____________________

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - ELEMENTS OF CLAIM

NO. 4 - DUTY OF JURORS

NO. 5 - ORDER OF TRIAL

NO. 6 - DEFINITION OF EVIDENCE

NO. 7 - CREDIBILITY OF WITNESSES

NO. 8 - STIPULATED FACTS

NO. 9 - DEPOSITIONS

NO. 10 - INTERROGATORIES

NO. 11 - OBJECTIONS

NO. 12 - BENCH CONFERENCES

NO. 13 - NOTE-TAKING

NO. 14 - BURDEN OF PROOF

NO. 15 - ADMONITION

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - AGE DISCRIMINATION

NO. 4 - AGE DISCRIMINATION--WILLFULNESS

NO. 5 - DAMAGES

NO. 6 - DELIBERATIONS



VERDICT FORM



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS

Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE

The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

This is a civil suit brought by plaintiffs James I. McLarty and Ronnie D. Lewis against defendant Woodbury County, Iowa, alleging age discrimination in violation of state and federal law. Mr. McLarty and Mr. Lewis allege that their age played a part in the decision of Woodbury County Engineer Richard Storm not to hire them as Equipment Operators in the Secondary Roads Department of Woodbury County. Woodbury County denies that age was a factor in the decision not to hire Mr. McLarty and Mr. Lewis, and claims instead that the decision was based on legitimate, non-discriminatory factors other than age.

You will be asked to resolve these disputes between the parties.



PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF CLAIM

To help you follow the evidence, here is a brief summary of the elements of Mr. McLarty's and Mr. Lewis's claims. You must give separate consideration to the claims of Mr. McLarty and Mr. Lewis against Woodbury County. Likewise, you must consider separately Woodbury County's defense to the claim of each plaintiff. Therefore, if you find that one plaintiff is entitled to recover, it does not necessarily follow that both are entitled to recover.

Both Mr. McLarty and Mr. Lewis claim that age played a part in the County's decision not to hire them. For Mr. McLarty or Mr. Lewis to win his claim, he must prove each of the following elements by the greater weight of the evidence as to him:

One, Woodbury County failed to hire the plaintiff; and

Two, that plaintiff's age played a part in Woodbury County's decision.

If a plaintiff has failed to prove both of these elements by the greater weight of the evidence, your verdict must be for Woodbury County on that plaintiff's claim of age discrimination. However, if you find that a plaintiff has proved both of these elements by the greater weight of the evidence, then you must award him damages in some amount.

This is only a preliminary outline of the elements of Mr. McLarty's and Mr. Lewis's claims. At the end of the trial, I will give you final written instructions that explain these claims, and Woodbury County's defenses to them, in greater detail. Because they are more detailed, those final instructions govern on the elements of and defenses to the plaintiffs' claims.



PRELIMINARY INSTRUCTION NO. 4 - DUTY OF JURORS

It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. In this case, the defendant is a governmental subdivision--a county. The mere fact that a party is a governmental subdivision does not mean that it is entitled to any greater or lesser consideration by you. All persons, including the individual plaintiffs and Woodbury County, stand equal before the law, and are entitled to the same fair consideration by you.

When a governmental subdivision such as Woodbury County is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of the County may bind the County by the acts and declarations made while acting within the scope of the authority delegated to the employee by the County or within the scope of the employee's or agent's duties as an employee or agent of the County. The parties have agreed that at all times relevant to this matter, Richard Storm was acting within the scope of his authority and duties as the Woodbury County Engineer. Therefore, defendant Woodbury County, as Mr. Storm's employer, will be liable for Mr. Storm's wrongful acts, if any, at issue in this proceeding.

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.



PRELIMINARY INSTRUCTION NO. 5 - ORDER OF TRIAL

The trial will proceed in the following order:

After I conclude these preliminary instructions, the plaintiffs' lawyer may make an opening statement. Next, the defendant's lawyer may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyers expect the evidence to be.

The plaintiffs will then present evidence and witnesses and the defendant may cross-examine. Following the plaintiffs' case, the defendant may present evidence and witnesses and the plaintiffs may cross-examine. Following the defendant's case, the plaintiffs may take a further opportunity to present additional evidence.

After the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you some final instructions on deliberations, and you will retire to deliberate on your verdict.



PRELIMINARY INSTRUCTION NO. 6 - DEFINITION OF EVIDENCE

You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person or testimony previously given, which includes depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.



PRELIMINARY INSTRUCTION NO. 7 - CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.

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 or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

You may hear testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinions on matters in that field and the reasons for their opinions. Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

Also, an expert witness may be asked to assume certain facts are true and to give an opinion based on that assumption. This is called a hypothetical question. If any facts assumed in the question are not proved by the evidence, you should decide if that omission affects the value of the expert's opinion.



PRELIMINARY INSTRUCTION NO. 8 - STIPULATED FACTS

The plaintiffs and defendant have agreed or "stipulated" to certain facts and have reduced these facts to a written agreement or stipulation. Any counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.



PRELIMINARY INSTRUCTION NO. 9 - DEPOSITIONS

Certain testimony from a deposition may be read into evidence. A deposition is testimony taken under oath before the trial and preserved in writing. Consider deposition testimony as if the testimony had been presented here in court.



PRELIMINARY INSTRUCTION NO. 10 - INTERROGATORIES

During this trial, you may hear the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.



PRELIMINARY INSTRUCTION NO. 11 - OBJECTIONS

From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. 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. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.



PRELIMINARY INSTRUCTION NO. 12 - BENCH CONFERENCES

During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.



PRELIMINARY INSTRUCTION NO. 13 - NOTE-TAKING

If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.



PRELIMINARY INSTRUCTION NO. 14 - BURDEN OF PROOF

In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. Each plaintiff has the burden of proving his claim of age discrimination by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.

The greater weight of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.



PRELIMINARY INSTRUCTION NO. 15 - ADMONITION

You will not be required to remain together while court is in recess. However, to ensure fairness, you, as jurors, must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case 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 trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you either.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

DATED this 30th day of December, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE









FINAL INSTRUCTION NO. 1 - INTRODUCTION

Members of the jury, the instructions I gave you at the beginning of the trial and any oral or written instructions I gave you during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, all instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial or during trial are not repeated here.

In considering these instructions, the order in which they are given is not important.

Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.



FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES

In Preliminary Instruction No. 7, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or "impeached" by contradictory evidence, or by evidence that at some 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 impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.



FINAL INSTRUCTION NO. 3 - AGE DISCRIMINATION

Both Mr. McLarty and Mr. Lewis claim that age was a motivating factor in the County's decision not to hire them. Remember that you must give separate consideration to the claims of Mr. McLarty and Mr. Lewis against Woodbury County. Likewise, you must consider separately Woodbury County's defense to the claim of each plaintiff. Therefore, if you find that one plaintiff is entitled to recover, it does not necessarily follow that both are entitled to recover.

Also remember that a governmental subdivision such as Woodbury County may act only through natural persons as its agents or employees; and, in general, any agent or employee of the County may bind the County by the acts and declarations made while acting within the scope of the authority delegated to the employee by the County or within the scope of the employee's or agent's duties as an employee or agent of the County. The parties have agreed that at all times relevant to this matter, Richard Storm was acting within the scope of his authority and duties as the Woodbury County Engineer. Therefore, defendant Woodbury County, as Mr. Storm's employer, will be liable for Mr. Storm's wrongful acts, if any, at issue in this proceeding.

For Mr. McLarty or Mr. Lewis to win his claim, he must prove each of the following elements by the greater weight of the evidence as to him:

One, Woodbury County failed to hire the plaintiff; and

Two, that plaintiff's age was a motivating factor in Woodbury County's decision.

The term "motivating factor" means a consideration that moved the defendant toward its decision, that is, a factor that played a part in the decision.

If a plaintiff has failed to prove both of these elements by the greater weight of the evidence, your verdict must be for Woodbury County on that plaintiff's claim of age discrimination. However, if you find that a plaintiff has proved both of these elements by the greater weight of the evidence, then you will consider whether Woodbury County has proved by the greater weight of the evidence that it would have failed to hire that plaintiff regardless of his age. If you find that the County would have made the same decision regardless of that plaintiff's age, then that plaintiff cannot recover on his claim of age discrimination and you must instead enter a verdict in favor of the County as to that plaintiff. If you find that the County has failed to prove by the greater weight of the evidence that it would not have hired that plaintiff regardless of his age, then that plaintiff is entitled to damages in some amount on his age discrimination claim.



FINAL INSTRUCTION NO. 4 - AGE DISCRIMINATION-- WILLFULNESS

If you find that either plaintiff James I. McLarty or plaintiff Ronnie D. Lewis was discriminated against by the County because of his age, then you must decide whether the County's violation of the federal law against age discrimination was willful.

A violation of the federal law against age discrimination is willful if a plaintiff has proved by the greater weight of the evidence that the County either knew or showed reckless disregard for the matter of whether its conduct was prohibited by federal law. A willful violation cannot occur by accident, inadvertence, or ordinary negligence.



FINAL INSTRUCTION NO. 5 - DAMAGES

The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance. In arriving at an item of damage, you cannot establish a figure by taking down the estimate of each juror as to that item of damage and agreeing in advance that the average of those estimates shall be your award of damage for that item.

If you find in favor of either Mr. McLarty or Mr. Lewis on his claim of age discrimination under Final Instruction No. 3, then you must award him such sum as you find by the greater weight of the evidence will fairly and justly compensate him for any wages and fringe benefits you find he would have earned in his employment with the County had he commenced working for the County on October 23, 1995, until the time of trial, minus the amount of earnings and benefits from other employment the plaintiff received during that time.

Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture and you must not award damages under these Instructions by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties.



FINAL INSTRUCTION NO. 6 - DELIBERATIONS

In conducting your deliberations and returning your verdict, there are certain rules you must follow.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict forms. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and when each of you has agreed on the verdicts, your foreperson will fill in the form and date it, all jurors will sign it, and the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 31st day of December, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE





IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





JAMES I. McLARTY and RONNIE D. LEWIS,
Plaintiffs,

No. C 97-4040-MWB

vs.



VERDICT FORM

WOODBURY COUNTY, IOWA, ex rel. WOODBURY COUNTY BOARD OF SUPERVISORS,
Defendant.

____________________



I. JAMES I. McLARTY



Question No. 1: On James I. McLarty's claim of age discrimination, as that claim is submitted to you in Final Instruction No. 3, in whose favor do you find?

_____ James I. McLarty _____ Woodbury County

Note: If you found in favor of Woodbury County in answer to Question No. 1, do not answer any further questions in Section I. Instead, go on to consider Mr. Lewis's claim of age discrimination in Section II. However, if you found in favor of Mr. McLarty on his claim of age discrimination in answer to Question No. 1, please answer the remaining questions in this Section.



Question No. 2: Do you find that Woodbury County's age discrimination towards Mr. McLarty was "willful" as "willfulness" is explained to you in Final Instruction No. 4?

_____ Yes _____ No





Question No. 3: What damages do you find Mr. McLarty has proved by the greater weight of the evidence as damages are submitted to you in Final Instruction No. 5?

$ _______________





II. RONNIE D. LEWIS



Question No. 4: On Ronnie D. Lewis's claim of age discrimination, as that claim is submitted to you in Final Instruction No. 3, in whose favor do you find?

_____ Ronnie D. Lewis _____ Woodbury County

Note: If you found in favor of Woodbury County in answer to Question No. 4, do not answer any further questions in this Section. Instead, sign the verdict form and notify the Court Security Officer that you have reached a verdict. However, if you found in favor of Mr. Lewis on his claim of age discrimination in answer to Question No. 4, please answer the remaining questions in this Section.



Question No. 5: Do you find that Woodbury County's age discrimination towards Mr. Lewis was "willful" as "willfulness" is explained to you in Final Instruction No. 4?

_____ Yes _____ No



Question No. 6: What damages do you find Mr. Lewis has proved by the greater weight of the evidence as damages are submitted to you in Final Instruction No. 5?

$ _______________





Date: ________________



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FOREPERSON



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JUROR JUROR



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JUROR JUROR



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JUROR JUROR



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