IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION





TERESA L. MERCER,
Plaintiff,

No. C 98-143-MWB

vs.

PRELIMINARY AND FINAL INSTRUCTIONS

TO THE JURY

CITY OF CEDAR RAPIDS and WILLIAM J. BYRNE,
Defendants.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - ELEMENTS OF THE CLAIM AND THE DEFENSE 3

NO. 4 - BURDEN OF PROOF 7

NO. 5 - DUTY OF JURORS 8

NO. 6 - ORDER OF TRIAL 10

NO. 7 - DEFINITION OF EVIDENCE 11

NO. 8 - CREDIBILITY OF WITNESSES 12

NO. 9 - DEPOSITIONS 13

NO. 10 - INTERROGATORIES 14

NO. 11 - OBJECTIONS 15

NO. 12 - BENCH CONFERENCES 16

NO. 13 - NOTE-TAKING 17

NO. 14 - CONDUCT OF JURORS DURING TRIAL 18

FINAL INSTRUCTIONS 20

NO. 1 - INTRODUCTION 20

NO. 2 - IMPEACHMENT OF WITNESSES 21

NO. 3 - PLAINTIFF'S CLAIM 23

NO. 4 - PLAINTIFF'S CLAIM: NATURE OF THE STATEMENTS 25

NO. 5 - PLAINTIFF'S CLAIM: SLANDER PER SE 28

NO. 6 - PLAINTIFF'S CLAIM: SLANDER, BUT NOT SLANDER

PER SE 29

NO. 7 - DEFENDANTS' DEFENSE: "TRUTH" 31

NO. 8 - DAMAGES--IN GENERAL 32

NO. 9 - DAMAGES--SPECIFIC 34

NO. 10 - DAMAGES--PUNITIVE 37

NO. 11 - DELIBERATIONS 38



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 case brought by plaintiff Teresa L. Mercer against two defendants, the City of Cedar Rapids and William J. Byrne, the former Cedar Rapids Chief of Police. Ms. Mercer asserts that Chief Byrne slandered her by making certain statements to The Cedar Rapids Gazette newspaper concerning her discharge as a probationary police officer with the Cedar Rapids Police Department. The defendants deny Mercer's slander claim. They assert that the statements at issue are not slanderous, that the statements were truthful, and that they were not made maliciously.

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

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE CLAIM

AND THE DEFENSE





To help you follow the evidence, here is a brief summary of the nature and elements of Teresa Mercer's slander claim and the defendants' affirmative defense of "truth."



The plaintiff's slander claim

"Slander" is the malicious oral publication of material tending to injure the reputation of another person or to expose the person to public hatred, contempt, or ridicule, or to injure the person in the maintenance of the person's business. "Libel," on the other hand, is defined as malicious publication of injurious material, expressed either in printing or in writing, or by signs and pictures. Mercer asserts only a slander claim here, which focuses on Chief Byrne's oral comments to the newspaper reporter, rather than the newspaper's printed publication of those comments, as the source of the wrong to her.

In order to win her claim of slander, Mercer must prove each of the following elements by the greater weight of the evidence, or, as specifically indicated, by clear and convincing evidence:

One, defendant Byrne made one or more of the statements alleged to be slanderous.

Two, defendant Byrne communicated the statements to someone other than the plaintiff, Teresa Mercer.

Three, one or more of the statements was slanderous or slanderous per se.

This element requires some further explanation, as your finding on this element determines what further elements the plaintiff must prove. Under Iowa law, there are two types of statements that give rise to a claim for slander, statements that are "slanderous per se," and statements that are "slanderous, but not slanderous per se." If you find that a statement is "slanderous per se," the plaintiff is not required to prove the falsity of the statement or that she was damaged by it; instead, damages are presumed. However, if the statement is "slanderous, but not slanderous per se," the plaintiff must prove both falsity of the statement and that she was damaged by it.

The focus of the analysis of whether a statement is "slanderous per se" or "slanderous, but not slanderous per se" is on the meaning of the statement or how it will be understood by a reasonable person. You may reach one of three possible conclusions: (1) the statement was reasonably understood as slanderous per se, that is, it is of such a nature that, whether or not it is true, it is presumed as a matter of law that its publication will have slanderous effect; (2) the statement was understood as slanderous, but not slanderous per se; or (3) the statement was not understood as slanderous.

A statement is "slanderous per se" if it can only be reasonably understood as an expression that would have a natural tendency to provoke the plaintiff to wrath, or to expose her to public hatred, contempt, or ridicule, or to deprive her of the benefit of public confidence or social relations. Statements that are slanderous per se include statements negatively affecting the plaintiff in her business, trade, profession, or office, or attacking the plaintiff's integrity and moral character.

However, a statement is not "slanderous per se" if it is susceptible to two reasonable constructions or meanings, one not slanderous. In that situation, it is for you to decide whether the slanderous meaning was the one conveyed. In other words, a statement is "slanderous, but not slanderous per se" if it is only slanderous by reference to the facts or circumstances beyond the words actually used. The statement is "slanderous" if the meaning the statement conveyed tended to injure the reputation of the plaintiff, expose the plaintiff to public hatred, contempt, or ridicule, or injured the plaintiff in her efforts to maintain her business.

A statement is not slanderous at all if it did not convey such a meaning.

Again, your finding on this element determines what further elements the plaintiff must prove:
If you find that a statement was "slanderous per se," then the plaintiff must also prove If you find that a statement was "slanderous, but not slanderous per se," then the plaintiff must also prove
Four, by clear and convincing evidence, the slanderous statement was made with "actual malice," that is, that the statement was made with knowledge that it was false or made with reckless disregard for truth or falsity. Four, the slanderous statement was false.



Five, by clear and convincing evidence, the slanderous statement was made with "actual malice," that is, the statement was made with knowledge that it was false or made with reckless disregard for truth or falsity.

Six, the statement caused damage to the plaintiff.
Seven, the amount of the damage.

If you find that the statement was not understood as slanderous at all, then the plaintiff cannot prevail on her slander claim.



The defendants' affirmative defense of "truth"

The defendants claim that the statements about which Mercer complains are true. The fact that a statement is true or substantially true is a complete defense, regardless of bad faith or malicious purpose. The defendant must prove the truth of the statement by the greater weight of the evidence.



This is only a preliminary outline of the elements of Mercer's slander claim and the defendants' defense of "truth." At the end of the trial, I will give you final written instructions that explain this claim and the defendants' defense to it in greater detail. Because they are more detailed, those final instructions govern on the elements of Mercer's claim and the defendants' defense.

PRELIMINARY INSTRUCTION NO. 4 - BURDEN OF PROOF



In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim depends upon that fact. In this case, unless otherwise indicated, facts must be proved 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.

As indicated in the preceding instruction, "actual malice" must be proved "by clear and convincing evidence." Evidence is "clear and convincing" if there is no serious or substantial uncertainty about the conclusion to be drawn from it.

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. 5 - 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, one of the defendants is a municipality. The mere fact that a party is a municipality does not mean that it is entitled to any greater or lesser consideration by you. All persons, including the individual plaintiff, the individual defendant, and the municipal defendant, stand equal before the law, and are entitled to the same fair consideration by you.

When a municipality such as the City of Cedar Rapids 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 City may bind the City by the acts and declarations made while acting within the scope of the authority delegated to the employee by the City or within the scope of the employee's or agent's duties as an employee or agent of the City.

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. 6 - ORDER OF TRIAL



The trial will proceed in the following order:

After I conclude these preliminary instructions, the plaintiff's lawyer may make an opening statement. Next, the defendants' 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 plaintiff will then present evidence and witnesses and the defendants may cross-examine. Following the plaintiff's case, the defendants may present evidence and witnesses and the plaintiff may cross-examine. Following the defendants' case, the plaintiff 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. 7 - 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.

You should not take anything I may say or do during the trial as indicating what I think of the evidence.

PRELIMINARY INSTRUCTION NO. 8 - 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. 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 that testimony as if it had been given 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 - CONDUCT OF JURORS

DURING TRIAL





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 case 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 14th day of November, 2000.



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. 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 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. 8, 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.

You have heard evidence suggesting that a certain non-party witness or non-party witnesses made statements before this trial that were inconsistent with what the witness or witnesses said in this trial. The way in which you may treat these inconsistent statements depends upon whether or not the prior statements were made under oath. If the earlier statements were not made under oath, you may use them only to help you decide whether or not to believe the witness. You must decide whether or not the earlier statements were made and whether they were inconsistent with testimony given at trial. You may disregard all or any part of the witness's trial testimony if you find the earlier statements were made and they were inconsistent with the testimony given, but you are not required to do so. Furthermore, you should not disregard the trial testimony if other evidence you believe supports it, or if you believe it for any other reason.

If the earlier statements were made under oath, and you find that the statements were made, you may regard the statements as evidence in this case the same as if they had been made under oath during the trial. If you find such a statement was made and was inconsistent with the witness's testimony during this trial, you may also use the statement as a basis for disregarding all or any part of the witness's testimony during the trial, but you are not required to do so. You should not disregard a witness's testimony during the trial if other evidence you believe supports it or if you believe it for any other reason.

You have also heard evidence suggesting that a party to this lawsuit made statements before this trial while under oath and while not under oath. If you find such statements were made, you may regard the statements as evidence in this case the same as if the party had made the statements under oath during the trial. If you find such statements were made and are inconsistent with the party's testimony during the trial, you may also use the statements as a basis for disregarding all or any part of the party's testimony during the trial, but you are not required to do so. You should not disregard a party's testimony during the trial if other evidence you believe supports it or if you believe it for any other reason.

FINAL INSTRUCTION NO. 3 - PLAINTIFF'S CLAIM



Plaintiff Teresa L. Mercer alleges that defendant William J. Byrne slandered her by making certain statements to The Cedar Rapids Gazette newspaper concerning her discharge as a probationary police officer with the Cedar Rapids Police Department. In order to win her claim of slander, plaintiff Mercer must prove each of the elements stated in Final Jury Instruction No. 4, which concerns the nature of the statements, by the greater weight of the evidence. In addition, based on your findings as to the nature of the statements, you may be required to consider whether plaintiff Mercer has proved certain additional elements in order to prevail on her claim. For example, if you find that Mercer has proved that a statement at issue was slanderous per se, in order to prevail on her claim as to that statement, she must prove one additional element defined in Final Jury Instruction No. 5. However, if you find that Mercer has proved that a statement was slanderous, but not slanderous per se, in order to prevail on her claim as to that statement, she must prove four additional elements defined in Final Jury Instruction No. 6. You must unanimously agree on the nature of each statement as either "slanderous per se," "slanderous, but not slanderous per se," or "not slanderous at all."

The plaintiff does not have to prove that both of the statements at issue were slanderous--that is, either "slanderous per se" or "slanderous, but not slanderous per se"-- in order to prevail on her claim. Rather, she must prove that at least one statement was slanderous or slanderous per se and then prove the other applicable elements regarding that statement in order to prevail. However, you must unanimously agree on whether she has prevailed on one or both statements, and if on only one statement, which one. If you cannot agree in this way, then you cannot find in favor of plaintiff Mercer on her slander claim.

Also, remember that the applicable burdens of proof that will be referred to later in these instructions, including "greater weight" of the evidence and "clear and convincing" evidence, were defined for you in Preliminary Jury Instruction No. 4.

FINAL INSTRUCTION NO. 4 - PLAINTIFF'S CLAIM:

NATURE OF THE STATEMENTS





In order to prevail on her slander claim, plaintiff Teresa L. Mercer must prove each of the following three elements by the greater weight of the evidence.

One, defendant Byrne made one or more of the statements alleged to be slanderous.

The plaintiff alleges that defendant Byrne made two slanderous statements: (1) that plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer; and (2) that the off-duty relationship between Captain Peters and Mercer "adversely affect[ed] the workplace."



Two, defendant Byrne communicated the statements to someone other than the plaintiff, Teresa Mercer.

The plaintiff alleges that defendant Byrne made the statement to a reporter for The Cedar Rapids Gazette newspaper.



Three, one or more of the statements was slanderous or slanderous per se.

Under Iowa law, there are two types of statements that give rise to a claim for slander, statements that are "slanderous per se," and statements that are "slanderous, but not slanderous per se." If you find that a statement is "slanderous per se," the plaintiff is not required to prove the falsity of the statement or that she was damaged by it; instead, damages are presumed. However, if the statement is "slanderous, but not slanderous per se," the plaintiff must prove both falsity of the statement and that she was damaged by it.

The focus of the analysis of whether a statement is "slanderous per se" or "slanderous, but not slanderous per se" is on the meaning of the statement or how it will be understood by a reasonable person. You may reach one of three possible conclusions: (1) the statement was reasonably understood as slanderous per se, that is, it is of such a nature that, whether or not it is true, it is presumed as a matter of law that its publication will have a slanderous effect; (2) the statement was understood as slanderous, but not slanderous per se; or (3) the statement was not understood as slanderous.

A statement is "slanderous per se" if it can only be reasonably understood in the article as an expression that would have a natural tendency to provoke the plaintiff to wrath, or to expose her to public hatred, contempt, or ridicule, or to deprive her of the benefit of public confidence or social relations. Statements that are slanderous per se include statements negatively affecting the plaintiff in her business, trade, profession, or office, or attacking the plaintiff's integrity and moral character.

However, a statement is not "slanderous per se" if it is susceptible to two reasonable constructions or meanings, one not slanderous. In that situation, it is for you to decide whether the slanderous meaning was the one conveyed. In other words, a statement is "slanderous, but not slanderous per se" if it is only slanderous by reference to the facts or circumstances beyond the words actually used in the article. The statement is "slanderous" if the meaning the statement conveyed tended to injure the reputation of the plaintiff, expose the plaintiff to public hatred, contempt, or ridicule, or injured the plaintiff in her efforts to maintain her business.

A statement is not slanderous at all if it did not convey such a meaning.



Again, your finding on element three determines what further elements the plaintiff must prove:

(1) If you find that a statement was "slanderous per se," then, in order to prevail on her slander claim as to that statement, the plaintiff must prove the element of "actual malice," as explained in Final Jury Instruction No. 5, in addition to the elements stated in this instruction.

(2) If you find that a statement was "slanderous, but not slanderous per se," then, in order to prevail on her slander claim as to that statement, the plaintiff must prove the elements of "falsity," "actual malice," "damages," and "amount of damages," as explained in Final Jury Instruction No. 6, in addition to the elements stated in this instruction.

(3) If you find that the statement was not understood as slanderous at all, then the plaintiff cannot prevail on her slander claim as to that statement.

If you find that the plaintiff has proved all of the elements stated in this instruction and the additional element in Final Jury Instruction No. 5 or the additional elements in Final Jury Instruction No. 6, as required for that statement, then you must also consider the defendants' affirmative defense of the "truth" of the statement or statements.

FINAL INSTRUCTION NO. 5 - PLAINTIFF'S CLAIM:

SLANDER PER SE





If you found that a statement was slanderous per se, then, in addition to proving the elements identified in Final Jury Instruction No. 4 by the greater weight of the evidence, the plaintiff must prove the following element by clear and convincing evidence:

Four, the slanderous statement was made with "actual malice."

To show "actual malice," there must be an intent to inflict harm through falsehood. Therefore, a statement is made with "actual malice" if it is made with knowledge that it is false or with reckless disregard for its truth or falsity. A "reckless disregard for truth or falsity" means that the speaker had a high degree of awareness of probable falsity of the statement. Consequently, a "reckless disregard for truth or falsity" may be established where there are obvious reasons to doubt the truth of the statement itself or the information on which the statement was based, but the statement was made anyway.



If the plaintiff has proved this element by clear and convincing evidence as to one or more statements, and has proved the elements stated in Final Jury Instruction No. 4 by the greater weight of the evidence as to that statement or those statements, then she is entitled to damages in some amount, unless you find that the defendants have established their affirmative defense of the "truth" of the statement, as that affirmative defense is explained for you in Final Jury Instruction No. 7.

FINAL INSTRUCTION NO. 6 - PLAINTIFF'S CLAIM:

SLANDER, BUT NOT SLANDER PER SE





If you found that a statement was slanderous, but not slanderous per se, then, in addition to proving the elements identified in Final Jury Instruction No. 4 by the greater weight of the evidence, the plaintiff must prove the following elements by the burden of proof indicated:

Four, by the greater weight of the evidence, the slanderous statement was false.

Five, by clear and convincing evidence, the slanderous statement was made with "actual malice."

To show "actual malice," there must be an intent to inflict harm through falsehood. Therefore, a statement is made with "actual malice" if it is made with knowledge that it is false or with reckless disregard for its truth or falsity. A "reckless disregard for truth or falsity" means that the speaker had a high degree of awareness of probable falsity of the statement. Consequently, a "reckless disregard for truth or falsity" may be established where there are obvious reasons to doubt the truth of the statement itself or the information on which the statement was based, but the statement was made anyway.



Six, by the greater weight of the evidence, the statement caused damage to the plaintiff.

The defendants' statement caused damage when it is a substantial factor in producing damage and when the damage would not have happened except for the statement. "Substantial" means that the defendants' statement has such an effect in producing damage as to lead a reasonable person to regard it as a cause.



Seven, the amount of the damage.

If the plaintiff has proved these elements by the burden of proof indicated as to one or more statements, and has proved the elements stated in Final Jury Instruction No. 4 by the greater weight of the evidence as to that statement or those statements, then she is entitled to damages in some amount, unless you find that the defendants have established their affirmative defense of the "truth" of the statement, as that affirmative defense is explained for you in Final Jury Instruction No. 7.

FINAL INSTRUCTION NO. 7 - DEFENDANTS' DEFENSE:

"TRUTH"





The defendants claim the statements about which Mercer complains are true. The fact that a statement is true or substantially true is a complete defense to a claim of slander based on that statement, regardless of bad faith or malicious purpose.

The defendants must prove the truth of the statement by the greater weight of the evidence. To do so, the defendants must establish the truth of the entire language of the statement, and establish it in the sense attributed to it by the plaintiff. Slight inaccuracies of expression are not important so long as the statement is substantially true. In other words, the defendants need not prove the literal truth of every detail of the statement, but must prove that, as the statement relates to the heart of the matter, it was true.

If the defendants have proved the truth of a statement, then the plaintiff cannot recover on her slander claim as to that statement. If the defendants have failed to prove the truth of a statement, then you shall consider whether the plaintiff is entitled to recover damages for slander based on that statement in accordance with the Final Jury Instructions on damages, which follow.

FINAL INSTRUCTION NO. 8 - DAMAGES--IN GENERAL



If you find in favor of Teresa Mercer on her claim of slander as to one or more of the statements at issue, you must award her such sum as you find will fairly and justly compensate her for any damages you find she sustained as a direct result of the defendants' slanderous statement or statements. However, I must explain to you now some matters applicable to all of your determinations of damages.

In arriving at the amount of damages on a claim, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages for that claim.

Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. Although the precise amount of the plaintiff's damages may be difficult to determine, that should not affect the plaintiff's recovery. On the other hand, the plaintiff is not to be awarded purely speculative damages. Damages may be awarded only when there is some reasonable basis in the evidence in the case for determining that the plaintiff has in fact suffered a loss, even though the amount of such loss is difficult to determine.

You must not award "general damages," damages to reputation, or compensatory damages, as explained in Final Jury Instruction No. 9 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. The amount you assess for any item of damage must not exceed the amount caused by the wrongful conduct of the defendants as proved by the evidence.

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 the event that you should find that the plaintiff is entitled to damages in accord with the other instructions.

FINAL INSTRUCTION NO. 9 - DAMAGES--SPECIFIC



I will now explain the measure of damages on Teresa Mercer's slander claim.

If you find that Teresa Mercer is entitled to recover damages, it is your duty to determine the amount. The kinds of damages you may award again depend upon whether you find that Mercer has proved that the statements were "slanderous per se," or only "slanderous, but not slanderous per se." If Mercer has proved that one or more of the statements on which she has prevailed is "slanderous per se," you may award either "general damages," or "actual damages," but not both. If Mercer has proved only that the statement or statements on which she has prevailed are "slanderous, but not slanderous per se," you may only award "actual damages." I will now explain each of these kinds of damages:

General damages. "General damages" may only be awarded for a statement you have found was slanderous per se. General damages are presumed to result from the communication of a statement that is slanderous per se. In other words, when statements are slanderous per se, the law allows you to impose damages without proof of falsity or damages. "General damages" are the kind of damages the law presumes naturally and necessarily result from the communication of a statement that is slanderous per se. The existence of damage to reputation is conclusively presumed from the publication of the statement that is slanderous per se.

However, recovery is limited to those damages that were a natural or probable consequence of the original slander or its repetition or republication. Therefore, the plaintiff must still prove injury to her reputation before you may award "general damages." The plaintiff must present evidence from which the consequences of the slander can be judged, which may include evidence such as the nature of the plaintiff's reputation before the slander was published and the extent of the publication. Evidence of reputation and extent of publication is necessary so that you can determine the extent of injury, but requiring such evidence is not the same as a requirement that the plaintiff prove damages. If a statement was slanderous per se, evidence of Mercer's prior reputation is only useful in determining the amount of damages awarded, not whether they should be awarded at all. If you find that Mercer has proved injury to her reputation, you may award substantial damages to compensate her for that injury, and any other mental anguish or economic losses she may have suffered that naturally and necessarily resulted from the communication of a statement that is slanderous per se or repetition of that statement.

Actual damages. If one or more of the statements were "slanderous per se," then, instead of, but not in addition to, "general damages," you may award "actual damages." If the only statement or statements on which the plaintiff has prevailed were "slanderous, but not slanderous per se," then you may only award "actual damages" instead of "general damages." "Actual damages" for slander consist of the following:

Damages to reputation. You may award the reasonable value of any loss of reputation suffered by the plaintiff as "damages to reputation." In determining this item of damage, you may consider the plaintiff's reputation before the statement was made and the extent to which the slanderous statement was communicated or repeated. To prove actual damages to reputation, the plaintiff must prove both that such damages should be awarded and the amount of the damages to be awarded.

Compensatory damages. Compensatory damages include damages for the reasonable value of the following: lost wages from the date of injury to the present time, less any wages actually earned by the plaintiff from other employment; mental and physical pain and suffering from the date of injury to the present time, which may include damages for mental anguish, emotional distress, humiliation, and loss of enjoyment of life, and physical symptoms related to them; and the present value of future mental and physical pain and suffering. As indicated, future damages must be reduced to present value. "Present value" is a sum of money paid now in advance which, together with interest earned at a reasonable rate of return, will compensate the plaintiff for future losses.

FINAL INSTRUCTION NO. 10 - DAMAGES--PUNITIVE



You may also award "punitive" damages if the plaintiff has proved by the greater weight of clear, convincing, and satisfactory evidence that defendant Byrne's conduct constituted a willful and wanton disregard for the rights or safety of another and caused actual damage to the plaintiff. Punitive damages may not be awarded against the City of Cedar Rapids under Iowa law; therefore, punitive damages in this case may only be awarded, if at all, against defendant Byrne.

Punitive damages are not intended to compensate for injury but are allowed to punish and discourage the defendant and others from like conduct in the future. There is no exact rule to determine the amount of punitive damages, if any, you should award. However, in fixing the amount of punitive damages, you may consider all the evidence including:

1. The nature of defendant's conduct.

2. The amount of punitive damages that will punish and discourage like conduct by the defendant in view of his financial condition.

3. The plaintiff's actual damages.

Again, you may award punitive damages if the plaintiff has proved by the greater weight of clear, convincing, and satisfactory evidence that defendant Byrne's conduct constituted a willful and wanton disregard for the rights or safety of another and caused actual damage to the plaintiff. Evidence is "clear, convincing, and satisfactory" if there is no serious or substantial uncertainty about the conclusion to be drawn from it. Conduct is "willful and wanton" if a person intentionally does an act of an unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow.

FINAL INSTRUCTION NO. 11 - 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. 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. 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 form. 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 complete it when you have reached a verdict. Your verdict must be unanimous and you must all sign the verdict form. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 17th day of November, 2000.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION





TERESA L. MERCER,
Plaintiff,

No. C 98-143-MWB

vs.

VERDICT FORM

CITY OF CEDAR RAPIDS and WILLIAM J. BYRNE,
Defendant.

____________________



On plaintiff Teresa L. Mercer's claim of slander against defendants City of Cedar Rapids and William J. Byrne, we, the Jury, find as follows:

SPECIAL INTERROGATORIES
Nature of the Statements

(Please refer to Final Jury Instruction No. 4)



1. As to the following statements, do you find that they were made by defendant Byrne?
___ Yes

___ No

That plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer.
___ Yes

___ No

That the off-duty relationship between Captain Peters and Mercer "adversely affect[ed] the workplace."
If you find that defendant Byrne did not make a statement, then you cannot find in favor of plaintiff Mercer on her slander claim as to that statement. If you find that defendant Byrne did not make either statement, then you must enter a verdict for the defendants in the GENERAL VERDICT section below on page 4. However, if you find that defendant Byrne did make a statement or statements, please answer the following interrogatory as to that statement or those statements.
2. As to the following statements, do you find that they were communicated by defendant Byrne to someone other than the plaintiff?
___ Yes

___ No

That plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer.
___ Yes

___ No

That the off-duty relationship between Captain Peters and Mercer "adversely affect[ed] the workplace."
If you find that the defendant did not communicate a statement to someone other than the plaintiff, then you cannot find in favor of plaintiff Mercer on her slander claim as to that statement. If you find that the defendant did not communicate either statement to someone other than the plaintiff, then you must enter a verdict for the defendants in the GENERAL VERDICT section below on page 4. However, if you find that defendant Byrne did communicate a statement or statements to someone other than the plaintiff, please answer the following interrogatory as to that statement or those statements.
3. As to the following statements, what do you find was the nature of the statements?
_____ Slanderous per se

_____ Slanderous, but not slanderous per se

_____ Not slanderous at all

That plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer.
_____ Slanderous per se

_____ Slanderous, but not slanderous per se

_____ Not slanderous at all

That the off-duty relationship between Captain Peters and Mercer "adversely affect[ed] the workplace."
If you find that a statement was not slanderous at all, then you cannot find in favor of the plaintiff on her slander claim as to that statement. If you find that neither statement was slanderous at all, then you must enter a verdict for the defendants in the GENERAL VERDICT section below on page 4. If you find that a statement was slanderous per se, please answer the special interrogatory regarding slander per se for that statement. If you find that a statement was slanderous, but not slanderous per se, please answer the special interrogatory regarding slander, but not slander per se, for that statement.
Slander Per Se

(Please refer to Final Jury Instruction No. 5)

4. For each statement you found above was slanderous per se, do you find by clear and convincing evidence that the statement was made with "actual malice"?
___ Yes

___ No

That plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer.
___ Yes

___ No

That the off-duty relationship between Captain Peters and Mercer "adversely affect[ed] the workplace."
If you find that a statement that is slanderous per se was not made with "actual malice," then you must find in favor of the defendants on the plaintiff's slander claim as to that statement.
Slander, But Not Slander Per Se

(Please refer to Final Jury Instruction No. 6)

5. For each statement you found was slanderous, but not slanderous per se, do you find
By the greater weight of the evidence that the statement was false? ___ Yes

___ No

That plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer.
___ Yes

___ No

That the off-duty relation-ship between Captain Peters and Mercer "adversely affect[ed] the workplace."
If you find that a statement was not false, then you cannot find in favor of the plaintiff on her slander claim as to that statement.
By clear and convincing evidence that the statement was made with "actual malice"? ___ Yes

___ No

That plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer.
___ Yes

___ No

That the off-duty relation-ship between Captain Peters and Mercer "adversely affect[ed] the workplace."
If you find that a statement was not made with "actual malice," then you must find in favor of the defendants on the plaintiff's slander claim as to that statement.
By the greater weight of the evidence that the statement caused damage to the plaintiff? ___ Yes

___ No

That plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer.
___ Yes

___ No

That the off-duty relation-ship between Captain Peters and Mercer "adversely affect[ed] the workplace."
If you find that a statement did not cause damage to the plaintiff, then you cannot find in favor of the plaintiff on her slander claim as to that statement. However, if you find that a statement caused damage, you will enter the amount of damage in the DAMAGES section below on page 4.
Defendants' Defense of "Truth"

(Please refer to Final Jury Instruction No. 7)

6. As to any statement you found above was slanderous per se or slanderous, but not slanderous per se, do you find that the defendants have proved that the statement is true or substantially true by the greater weight of the evidence?
___ Yes

___ No

That plaintiff did not "meet up" with the standards for a Cedar Rapids Police Officer.
___ Yes

___ No

That the off-duty relationship between Captain Peters and Mercer "adversely affect[ed] the workplace."
If you find that the defendants have proved the "truth" of a statement, that is a complete defense to the plaintiff's slander claim as to that statement. If the defendants have proved the "truth" of both statements, then you must enter a verdict for the defendants in the GENERAL VERDICT section below. However, if the defendants have failed to prove the "truth" of any statement you found was slanderous per se or slanderous, then you must enter a verdict for the plaintiff in the GENERAL VERDICT section below.
GENERAL VERDICT
On plaintiff Mercer's claim of slander, we find in favor of:
__ Plaintiff Teresa Mercer Or __ Defendants City of Cedar Rapids and William J. Byrne
DAMAGES

Specific Damages

(If you have entered a verdict in favor of the plaintiff in the GENERAL VERDICT section just above, please award specific damages as those damages are explained in Final Jury Instruction Nos. 8 and 9)

Specific damages for "slander per se"

(If one or more of the statements on which the plaintiff has prevailed is "slanderous per se," award specific damages here. If no statement on which the plaintiff has prevailed was "slanderous per se," award specific damages below in the section for Specific damages for "slander, but not slander per se")

General damages in the following amount: $ ________________
OR
Actual damages, consisting of the following:
Damages to reputation in the following amount:



$ ________________


Compensatory damages in the following amounts:
Lost wages $ ______
Past pain and suffering $ ______
Present value of future pain and suffering $ ______
Specific damages for slander, but not slander per se

(Award specific damages here only if no statement on which the plaintiff has prevailed was slanderous per se.)

Actual damages, consisting of the following:
Damages to reputation in the following amount:



$ ________________


Compensatory damages in the following amounts:
Lost wages $ ______
Past pain and suffering $ ______
Present value of future pain and suffering $ ______
Punitive Damages

(If you have entered a verdict in favor of the plaintiff in the GENERAL VERDICT section on page 4, you may award punitive damages as punitive damages are explained in Final Jury Instruction No. 10. Remember that punitive damages may only be awarded against defendant Byrne; punitive damages cannot be awarded against the City of Cedar Rapids under Iowa law.)

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Byrne constituted willful and wanton disregard for the rights or safety of another? (If your answer to this question is "No," do not answer the remaining questions.)



_____ Yes

_____ No

What amount of punitive damages, if any, do you award against defendant Byrne?



$ ___________
Was the conduct of defendant Byrne directed specifically at plaintiff Teresa Mercer? _____ Yes

_____ No





Date: ________________ Time: ________________





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