Rules and Courtroom Decorum for All Cases; Procedures for Civil Discovery and Settlement Matters; Procedures for Civil Consent Cases; PDF Format; PDF Format

=== Rules and Courtroom Decorum for All Cases ===

Rules and Courtroom Decorum for All Cases 1. Opposing counsel must be copied on all email communications that counsel initiate with the Court. 2. Counsel and parties should be seated at counsel table and prepared to proceed no later than three minutes before the Court’s scheduled time. 3. On trailing calendar proceedings, including all preliminary criminal proceedings, special requests to advance or delay appearance times due to counsel’s scheduling conflicts may be presented to the Court’s courtroom deputy. 4. Please determine well in advance of trial if there is a need for court interpreters for civil cases. The Court’s courtroom deputy can assist counsel in locating qualified interpreters for civil proceedings. In all criminal cases, the Court will supply certified interpreters. 5. Gum chewing is not permitted in court. Counsel is responsible for ensuring that parties, witnesses, and court observers associated with counsel’s party properly dispose of gum in appropriate receptacles prior to entering the courtroom. 6. All cell phones exempt from the prohibition in Local Rule 83.1 must be silenced. Counsel is responsible for ensuring that parties, witnesses, and court observers associated with counsel’s party comply with this requirement. 7. Use of Federal Bar Association WiFi during court proceedings is authorized by Judge Wormuth. 8. Counsel should question witnesses from the podium and approach the witness stand or jury box only with the Court’s permission. 9. If a jury is present, speaking objections are prohibited. Counsel should simply state the objection and the basis for the objection without argument, i.e., “Objection. Hearsay,” or “Objection. Leading.” 10. Opposing counsel should not respond to objections unless the Court specifically requests a response. 11. Please stand when the jury enters or leaves the courtroom; stand also when stating objections or addressing the Court unless otherwise directed 12. Dress Code: a. Men should wear a collared shirt and long pants. Jeans are acceptable. b. Women should wear a dress, or a blouse with either a skirt or long pants. Jeans are acceptable. c. All persons must wear shoes in the courtroom. Flip-flops and thong sandals are not acceptable. d. Shorts, t-shirts, and revealing clothing are not acceptable. e. Hats or caps must be removed while in the courtroom.

=== Procedures for Civil Discovery and Settlement Matters ===

Procedures for Civil Discovery and Settlement Matters 1. For any opposed motion, counsel should indicate in their briefing whether they request a hearing on the motion and, if so, whether they request it be conducted telephonically or in person. 2. If materials must be sent to the Court for any reason, they should be sent electronically to [email protected] or by mail to: Judge Gregory Wormuth, 100 N. Church Street, Las Cruces, NM 88001. Please do not send by facsimile. Opposing counsel must be copied on all written or email communications that counsel conduct with the Court with the exception of the confidential letter sent in anticipation of a settlement conference. 3. Unless otherwise requested and ordered, all settlement conferences with Judge Wormuth are held in the Organ courtroom of the U.S. District Courthouse in Las Cruces. 4. The Court does not provide interpreters for settlement conferences. If a participant requires an interpreter, counsel must ensure one is present. 5. Even if stipulated, parties seeking an extension in excess of ten (10) days for any filing deadline must file a Motion to Extend with the Court by the day of the original deadline. If the parties agree to a filing extension of less than ten (10) days which does not interfere with other established case management deadlines, they must file a notice as required by Local Rule 7.4(a). 6. Proposed orders must be sent to [email protected] after the filing of any unopposed motion. They should be submitted in Microsoft Word format (as .docx files), should have 1” margins, be non-justified, include two spaces between each sentence, and use Palatino Linotype Font, size 12. In civil cases, the case number should be presented as follows: Civ. No. ###-### [Presiding Judge initials] / [Referral Judge initials]. Further, they should indicate the approval of all parties by including the electronic signature of all parties at the end of the document. 7. Individual exhibits attached to a filing on CM/ECF must be filed as separate attachments such that each exhibit has a unique docket sub-number. For example, Exhibit A should be Attachment 1, Exhibit B should be Attachment 2, and so on. If the final docket number for the filing is 10, Exhibit A will be labeled as doc. 10-1, and Exhibit B will be labeled as doc. 10-2. 8. Parties must clearly label all exhibits attached to a filing on CM/ECF. For example, rather than merely labeling an exhibit “Exhibit A,” parties must provide additional 1 description, such as “Exhibit A: Deposition of Plaintiff Jones,” or “Exhibit A: Defendant Smith’s Responses to Interrogatories.” 9. For telephonic conferences or hearings, counsel must call into the conference line no later than three (3) minutes before the conference or hearing begins. 10. Judge Wormuth is available to resolve discovery disputes informally. If the meet- and-confer process does not resolve a dispute and counsel agree to attempt to resolve it informally, counsel may call or email chambers to coordinate a telephonic conference with the judge. Counsel should give a brief summary of the issue and the availability of all counsel. If counsel agree that it would be helpful, they may provide written materials that summarize or are relevant to the dispute. Obviously, any such material must be copied to opposing counsel. Keep in mind that the nature of such an informal process means that the issues should be relatively narrow and discrete. 11. Counsel are reminded that when Judge Wormuth is assigned as the discovery/referral judge, the parties may consent to him presiding over the case pursuant to Local Rule 73.2. Counsel is advised that Judge Wormuth will conduct trials in Albuquerque or Roswell if the parties unanimously request it. Should the parties wish to do so, they must fill out Form AO 85 – “Notice, Consent, and Reference of a Civil Action to a Magistrate Judge.” The form must be returned to the Clerk’s Office and should not be sent directly to either assigned judge. Form AO 85 is provided on Judge Wormuth’s webpage within the “Resources” tab through the “Court Forms” link. 2

=== Procedures for Civil Consent Cases ===

Procedures for Civil Consent Case Matters 1. For any opposed motion, counsel should indicate in their briefing whether they request a hearing on the motion and, if so, whether they request it be conducted telephonically or in person. 2. If materials must be sent to the Court for any reason, they should be sent electronically to [email protected] or by mail to: Judge Gregory Wormuth, 100 N. Church Street, Las Cruces, NM 88001. Please do not send by facsimile. Opposing counsel must be copied on all written or email communications that counsel conduct with the Court with the exception of the confidential letter sent in anticipation of a settlement conference. 3. Counsel is advised that Judge Wormuth will conduct trials in Albuquerque or Roswell if the parties unanimously request it. 4. Even if stipulated, parties seeking an extension in excess of ten (10) days for any filing deadline must file a Motion to Extend with the Court by the day of the original deadline. If the parties agree to a filing extension of less than ten (10) days which does not interfere with other established case management deadlines, they are reminded to file a notice as required by Local Rule 7.4(a). 5. Proposed orders must be sent to [email protected] after the filing of any unopposed motion. They should be submitted in Microsoft Word format (as .docx files), should have 1” margins, be non-justified, include two spaces between each sentence, and use Palatino Linotype Font, size 12. In civil cases, the case number should be presented as follows: Civ. No. ###-### [Presiding Judge initials] / [Referral Judge initials]. Further, they should indicate the approval of all parties by including the electronic signature of all parties at the end of the document. 6. Individual exhibits attached to a filing on CM/ECF must be filed as separate attachments such that each exhibit has a unique docket sub-number. For example, Exhibit A should be Attachment 1, Exhibit B should be Attachment 2, and so on. If the final docket number for the filing is 10, Exhibit A will be labeled as doc. 10-1, and Exhibit B will be labeled as doc. 10-2. 7. Parties must clearly label all exhibits attached to a filing on CM/ECF. For example, rather than merely labeling an exhibit “Exhibit A,” parties must 1 provide additional description, such as “Exhibit A: Deposition of Plaintiff Jones,” or “Exhibit A: Defendant Smith’s Responses to Interrogatories.” 8. For telephonic conferences or hearings, counsel must call into the conference line no later than three (3) minutes before the conference or hearing begins. 9. Please determine well in advance if there is a need for court interpreters for a hearing or trial and advise the Court. 10. When submitting proposed jury instructions, counsel should review the Court’s stock (both preliminary and pre-deliberation) jury instructions. While the stock instructions are not mandatory or inflexible, counsel should consider whether they object to the relevant stock instructions. 2

=== PDF Format ===

PRELIMINARY INSTRUCTIONS Members of the Jury: Now that you have been sworn, I will give you some preliminary instructions to guide you during this trial. You are the judges of the facts. It will be your duty to find from the evidence what the facts are. You will then apply the law to the facts. I will instruct you on the applicable law later. You must follow that law whether you agree with it or not. Nothing that I say or do is intended to indicate what your verdict should be. The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received as exhibits, and any facts that the lawyers agree to, or that I instruct you to find. Certain things are not evidence and must not be considered by you. 1. Statements, arguments and questions by lawyers are not evidence. 2. Objections to questions are not evidence. Lawyers have an obligation to their clients to object when they believe evidence being offered is improper under the Rules of Evidence. You should not be influenced by the objection or by my ruling on it. If the objection is sustained, ignore the question. If I instruct you that some item of evidence is received for a limited purpose only, you must follow that instruction. 3. Testimony that I have excluded or tell you to disregard is not evidence and must not be considered. 4. Anything that you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are to decide the case solely on the evidence presented here in court. It will be up to you to decide which witnesses to believe, which witnesses not to believe, and how much of any witness’s testimony to accept or reject. When determining the weight to be given to the testimony of a witness, you may consider his interest, if any, in the outcome of the case; his relationship to the parties; his manner while testifying; any bias or prejudice the witness may have; and whether the testimony of the witness was impeached by prior statements he made or by other evidence. This is a civil case. The Plaintiff has the burden of proving his case by a preponderance of the evidence. This means that the Plaintiff has to produce evidence which, considered in light of all the facts, leads you to believe that the Plaintiff’s claims are more likely true than not true. During trial it may be necessary for me to talk with the lawyers out of the hearing of the Jury, either by having a bench conference here while the Jury is present in the courtroom, or by calling a recess. 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. During this trial and until you have rendered a verdict, do not discuss this case with anyone or permit anyone to discuss it with you or in your presence. This rule about not discussing the case includes discussions even with members of your family or friends. This rule also includes electronic communication. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube. If any person attempts to talk to you or communicate with you about this case, either in or out of the courthouse, you should immediately report that attempt to me. The attorneys and parties are not supposed to talk to jurors, even to say “hello.” So, if you happen to see them outside the courtroom they will not speak to you. Please do not be offended by this. They will only be acting in accordance with my instructions. Until you retire at the end of the case to begin your deliberations, do not talk about this case with each other. You may not consider anything you may have read or heard about this case outside the courtroom. During trial you must avoid news accounts about this case, whether it is on television, the radio, or the internet, or is in the newspaper. If you happen to see or hear any news about this trial, please let a member of my staff know. Please do not attempt any tests, research or experiments, and do not visit any location involved in this case. It would be difficult or impossible to duplicate conditions shown by the evidence; therefore, your results would not be reliable. Such conduct would also run contrary to the rule that your verdict must be based solely on the evidence presented to you in court. You also must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Nevertheless, in your deliberations, you need not ignore your backgrounds, including professional, vocational and educational experience. Please keep an open mind until the entire case has been completed and submitted to you. Your special responsibility as jurors requires that throughout this trial you exercise your judgment impartially and without regard to any sympathy, bias or prejudice. If you wish you may take notes. Pencils and tablets have been provided for you. If you take notes please leave them in the jury room when you leave at night. The notes are for your own personal use - they are not to be read or given to anyone else before or during deliberations. Even though the court reporter is making a record of these proceedings, a copy of the transcript will not be available for your use during deliberations. The exhibits will be available to you during your deliberations. Ordinarily the lawyers will develop all relevant evidence that is necessary for you to reach your verdict. In rare situations, a juror may believe a question is critical to reaching a decision on a necessary element of the case. In that situation, you may write out a question and provide it to the courtroom deputy before the witness leaves the witness stand. I will review the question with the lawyers and will determine whether it is a proper and necessary question. If it is, I will ask it. Please understand that the Rules of Evidence may prevent the question from being asked. The trial will now begin. First, each side may make an opening statement. An opening statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered to help you follow the evidence. Next, the Plaintiff will present his witnesses and exhibits. Then, the Defendants will present their witnesses and exhibits. Each side may cross-examine witnesses presented by the other side. After that I will give you instructions on the law, and the lawyers will make their closing arguments to summarize and interpret the evidence for you.

=== PDF Format ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO Plaintiff, v. CV 0- GBW/ Defendant. STOCK JURY INSTRUCTIONS FOR CIVIL TRIALS Effective November 23, 2009 STOCK INSTRUCTION 1 (Use of Notes) Any notes that you have taken during this trial are only aids to your memory. If your memory differs from your notes, you should rely on your memory and not on the notes. The notes are not evidence. If you have not taken notes, you should rely on your independent recollection of the evidence and should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollection or impression of each juror about the testimony. Source: 5th Circuit Pattern Instruction 2.21 STOCK INSTRUCTION 2 (Non-English Speaking Juror) Ladies and gentlemen, we have at least one [non-English-speaking] [hearing-impaired] juror who is participating in this case. The law permits all citizens to serve on a jury whether or not [English is their first language] [they are hearing-impaired]. You must include this [these] juror(s) in all deliberations and discussions on this case. To help you communicate, the juror(s) will be using the services of the official court interpreter. The following rules govern the conduct of the interpreter and the jury: 1. The interpreter’s only function in the jury room is to interpret between [English and [the non-English-speaking juror(s)’ native language]] [speech and sign language]. 2. The interpreter is not permitted to answer questions, express opinions, have direct conversations with other jurors or participate in your discussions or deliberations. 3. The interpreter is only permitted to speak directly to a member of the jury to ensure that the interpreter’s equipment is functioning properly and to advise the jury foreperson if a specific interpreting problem arises that is not related to the factual or legal issues in the case. 4. No gesture, expression, sound or movement made by the interpreter in the jury room should influence your opinion or indicate how you should vote. 5. If you can speak both English and [the language of the non-English speaker] [read sign language], you must speak only English in the jury room so the rest of the jury is not excluded from any conversation. 6. Leave all interpretations to the official court interpreter. The interpreter is the only person permitted to interpret conversations inside the jury room and testimony in the courtroom. 7. You must immediately report any deviation from these rules by submitting a note identifying the problem to the judge or court personnel. Source: NM UJI 110A STOCK INSTRUCTION 3 (Corporation as Party) The __________ (plaintiff, defendant, or other party) in this case is a corporation. A corporation is entitled to the same fair and unprejudiced treatment as an individual and you should decide the case with the same impartiality as you would use in deciding a case between individuals. Source: NM UJI 13-114 STOCK INSTRUCTION 4 (Multiple Plaintiffs) Although there is more than one plaintiff in this action, it does not follow from that fact alone that if one is entitled to recover, another is entitled to recover. The rights of the various plaintiffs in this lawsuit are separate and distinct, and you should decide the issues as if each plaintiff had brought a separate lawsuit. [In this connection, you will note that some of the instructions apply to one plaintiff, while other instructions apply to all plaintiffs.] Source: NM UJI 13-115 STOCK INSTRUCTION 5 (Multiple Defendants) Although there is more than one defendant in this action, it does not follow from that fact alone that if one is liable another is liable. Each defendant is entitled to a fair consideration of that defendant’s own defense. You will decide each defendant’s case separately, as if each were a separate lawsuit. Source: NM UJI 13-116 STOCK INSTRUCTION 6 (Deposition Testimony) A deposition is testimony taken under oath before trial and has been preserved [in writing] [by video]. This testimony is entitled to the same consideration as any other testimony at this trial. Source: NM UJI 13-203 The Directions for Use of this instruction state that it should be given when a deposition is first admitted into evidence, but may be repeated at the close of the case. STOCK INSTRUCTION 7 (Interrogatories) Interrogatories are written questions asked by one party to another before trial and answered under oath. The questions and answers may be read at trial as evidence. The answers read to you are entitled to the same consideration as any other testimony. Source: NM UJI 13-204 The Directions for Use of this instruction state that it should be given when the interrogatories are first admitted into evidence, but may be repeated at the close of the case. STOCK INSTRUCTION 8 (Expert Testimony) The Rules of Evidence do not ordinarily permit a witness to testify as to an opinion or conclusion. However, a witness who is qualified as an expert in a subject may be permitted to state an opinion as to that subject. After considering the reasons stated for an opinion, you should give it such weight as it deserves. You may reject an opinion entirely if you conclude that it is unsound. Source: NM UJI 13-213 the The Directions for Use of this instruction state that it should be given at the time expert first testifies. STOCK INSTRUCTION 9 (General Instructions for Charge) MEMBERS OF THE JURY: You have heard the evidence in this case. I will now instruct you on the law that you must apply. Please pay close attention to these instructions. I will read them only once, but the written instructions will be given to you to take to the jury room. It is your duty to follow the law as I give it to you. On the other hand, you the jurors are the judges of the facts. Do not consider any statement that I have made in the course of trial or make in these instructions as an indication that I have any opinion about the facts of this case. After I instruct you on the law, the attorneys will have an opportunity to make their closing arguments. Statements and arguments of the attorneys are not evidence and are not instructions on the law. They are intended only to assist the jury in understanding the evidence and the parties’ contentions. Sources: First two paragraphs of 5th Circuit Pattern Instruction 3.1 Portion of NM UJI 13-301 (last two sentences of first paragraph) STOCK INSTRUCTION 10 (Statement of Theories for Recovery) In this case the plaintiff(s) ______________ seek(s) compensation from the defendant(s) ___________ for damages that plaintiff(s) say(s) were caused by __________. [Plaintiff’s summary of theories for recovery must be individually tailored for each case.] Source: NM UJI 13-302A STOCK INSTRUCTION 11 (Statement of Denials and Affirmative Defenses) The defendant(s) _______________ deny(ies) what the plaintiff(s) say(s) [and the defendant(s) say(s) that ___________________]. [Defendant’s summary of denials and affirmative defenses must be individually tailored for each case.] Source: NM UJI 13-302C STOCK INSTRUCTION 12 (Burden of Proof) A party seeking a recovery [or a party relying upon a defense] has the burden of proving every essential element of the claim [or defense] by the preponderance of the evidence. To prove by the preponderance of the evidence means to establish that something is more likely true than not true. When I say, in these instructions, that the party has the burden of proof on __________ (theory(ies) of recovery by name), I mean that you must be persuaded that what is sought to be proved is more probably true than not true. Evenly balanced evidence is not sufficient. Source: NM UJI 13-304, substituting “preponderance” for “greater weight” and omitting clear and convincing standard STOCK INSTRUCTION 13 (Causation) An [act] [or] [omission] [or] [__________ (condition)] is a “cause” of [injury] [harm] [__________ (other)] if [, unbroken by an independent intervening cause,] it contributes to bringing about the [injury] [harm] [__________ (other)] [, and if injury would not have occurred without it]. It need not be the only explanation for the [injury] [harm] [__________ (other)], nor the reason that is nearest in time or place. It is sufficient if it occurs in combination with some other cause to produce the result. To be a “cause,” the [act] [or] [omission] [or] [__________ (condition)], nonetheless, must be reasonably connected as a significant link to the [injury] [harm]. Source: NM UJI 13-305 how regard Refer to the Directions for Use and Committee Commentary for explanations of and when to use the bracketed material. If the evidence presents an issue with to an independent intervening cause, NM UJI 306 can also be given. STOCK INSTRUCTION 14 (Consideration of Evidence) As stated earlier, it is your duty to determine the facts and in so doing you must consider only the evidence I have admitted in the case. The evidence consists of the testimony of the witnesses and the exhibits admitted into evidence by the court [and any facts admitted or agreed to by counsel] [and any facts which the court instructs you to accept as true]. You may draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. You may make deductions and reach conclusions that reason and common sense lead you to make from the testimony and evidence. The testimony of a single witness may be sufficient to prove any fact, even if a greater number of witnesses may have testified to the contrary, if after considering all the other evidence you believe that single witness. Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw 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. Sources: First paragraph—First paragraph of NM UJI 13-307, with first sentence added Second and third paragraphs—First and Second paragraphs of 5th Circuit Pattern Instruction 2.18 Fourth paragraph—9th Circuit Pattern Instruction 3.5, with last sentence omitted STOCK INSTRUCTION 15 (Official English Interpretation Controls) Spanish [or other language] has been used during this trial. The evidence you are to consider is only that provided through the official court interpreter(s). Although some of you may know Spanish [or other language], it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English interpretation. You must disregard any different meaning. Source: 9th Circuit Pattern Instruction 3.4 STOCK INSTRUCTION 16 (Rules of Evidence) The production of evidence in court is governed by rules of law. From time to time it has been my duty, as judge, to rule on the evidence. You must not concern yourselves with the reasons for these rulings. You should not consider what would or would not have been the answers to the questions which the court ruled could not be answered. Source: NM UJI 13-307 (first paragraph omitted here, but included in Stock Instruction 14) STOCK INSTRUCTION 17 (Charts and Summaries Not Received in Evidence) Certain charts and summaries have been shown to you to help explain the evidence. Such charts or summaries are used for convenience. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence. Source: 9th Circuit Pattern Instruction 3.9, with modifications STOCK INSTRUCTION 18 (Charts and Summaries Received in Evidence) Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves. Source: 9th Circuit Pattern Instruction 3.10 STOCK INSTRUCTION 19 (Limiting Instruction) You will recall that during the course of this trial I instructed you that I admitted certain testimony [and certain exhibits] for a limited purpose and I instructed you that you may consider some testimony [and documents] as evidence against one party but not against another. You may consider such evidence only for the specific limited purposes for which it was admitted. [Specific limiting instructions may be repeated as appropriate.] Source: 5th Circuit Pattern Instruction 2.15 STOCK INSTRUCTION 20 (Corporation Acts Through Employees) A corporation can act only through its officers and employees. Any act or omission of an officer or an employee of a corporation, within the scope or course of that officer’s or employee’s employment, is the act or omission of the corporation. Source: NM UJI 13-409 STOCK INSTRUCTION 21 (Liability Determined Before Damages) You are not to engage in any discussion of damages unless you have first determined that there is liability, as elsewhere covered in these instructions. The fact that you are given instructions on damages is not to be taken as an indication as to whether the court thinks damages should or should not be awarded. Source: NM UJI 13-1801 STOCK INSTRUCTION 22 (Compensatory Damages) If you find that the defendant is liable to the plaintiff, then you must determine an amount that is fair compensation for all of the plaintiff’s damages. These damages are called compensatory damages. The purpose of compensatory damages is to make the Plaintiff whole–that is, to compensate the plaintiff for the damage that the plaintiff has suffered. [Compensatory damages are not limited to expenses that the plaintiff may have incurred because of his or her injury. If the plaintiff wins, he or she is entitled to compensatory damages for the physical injury, pain and suffering, mental anguish, shock and discomfort that he or she has suffered because of the defendant’s conduct.] You may award compensatory damages only for injuries that the plaintiff proves were caused by the defendant’s allegedly wrongful conduct. The damages that you award must be fair compensation for all of the plaintiff’s damages, no more and no less. [Damages are not allowed as a punishment and cannot be imposed or increased to penalize the defendant.] You should not award compensatory damages for speculative injuries, but only for those injuries which the plaintiff has actually suffered or that the plaintiff is reasonably likely to suffer in the future. You must use sound discretion in fixing an award of damages, drawing reasonable inferences where you find them appropriate from the facts and circumstances in evidence. Further, sympathy or prejudice for or against a party should not affect your verdict and is not a proper basis for determining damages. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence: [insert elements of damages] Sources: 5th Circuit Pattern Instruction 15.2, omitting the third paragraph and the sentence in the second paragraph Last sentence of NM UJI 13-1802 word “proximately” from first STOCK INSTRUCTION 23 (Mitigation of Damages) A person who claims damages resulting from the wrongful act of another has a duty under the law to use reasonable diligence to mitigate—to avoid or minimize those damages. If you find the defendant is liable and the plaintiff has suffered damages, the plaintiff may not recover for any item of damage which he or she could have avoided through reasonable effort. If you find by a preponderance of the evidence the plaintiff unreasonably failed to take advantage of an opportunity to lessen the damages, you should deny a recovery for those damages which the plaintiff would have avoided had he or she taken advantage of the opportunity. You are the sole judge of whether the plaintiff acted reasonably in avoiding or minimizing damages. An injured plaintiff may not sit idly by when presented with an opportunity to reduce damages. However, the plaintiff is not required to exercise unreasonable efforts or incur unreasonable expenses in mitigating the damages. The defendant has the burden of proving the damages which the plaintiff could have mitigated. In deciding whether to reduce the plaintiff’s damages because of a failure to mitigate, you must weigh all the evidence in light of the particular circumstances of the case, using sound discretion in deciding whether the defendant has satisfied the burden of proving that the plaintiff’s conduct was not reasonable. Source: 5th Circuit Pattern Instruction 15.15, modified to be gender-neutral STOCK INSTRUCTION 24 (Prohibition on Double Recoveries) You must not award compensatory damages more than once for the same injury. The plaintiff is only entitled to be made whole once, and may not recover more than the plaintiff has lost. Of course, if different injuries are attributed to the separate claims, then you must compensate the plaintiff fully for all injuries. [With respect to punitive damages, you may make separate awards on each claim that the plaintiff has established.] Source: First two paragraphs of 5th Circuit Pattern Instruction 15.14, omitting second sentence of first paragraph STOCK INSTRUCTION 25A (Punitive Damages—Direct Liability) You may consider punitive damages only if you find that the plaintiff should recover compensatory [or nominal] damages. If you find that the conduct of the defendant was [malicious], [willful], [reckless], [wanton], [fraudulent] [or] [in bad faith], then you may award punitive damages against [him] [her] [it]. [Malicious conduct is the intentional doing of a wrongful act with knowledge that the act was wrongful.] [Willful conduct is the intentional doing of an act with knowledge that harm may result.] [Reckless conduct is the intentional doing of an act with utter indifference to the consequences. When there is a high risk of danger, conduct that breaches the duty of care is more likely to demonstrate recklessness.] [Wanton conduct is the doing of an act with utter indifference to or conscious disregard for a person’s [rights] [safety].] Punitive damages are awarded for the limited purposes of punishment and to deter others from the commission of like offenses. The amount of punitive damages must be based on reason and justice taking into account all the circumstances, including the nature and enormity of the wrong and such aggravating and mitigating circumstances as may be shown. The property or wealth of the defendant is a legitimate factor for your consideration. The amount awarded, if any, must be reasonably related to the injury and to any damages given as compensation and not disproportionate to the circumstances. Source: NM UJI 13-1827, omitting first sentence and provisions related to vicarious liability STOCK INSTRUCTION 25B (Punitive Damages—Vicarious Liability) If you find that the conduct of __________ (name of agent or employee of party on whose conduct vicarious claim for punitive damages is based) was [malicious], [willful], [reckless], [wanton], [fraudulent] [or] [in bad faith], you may award punitive damages against __________ (name of party against whom vicarious liability for punitive damages is asserted) if: (A) __________ (name of agent or employee) was acting in the scope of [his] [her] employment by __________ (name of party) and had sufficient discretionary or policy-making authority to speak and act for [him] [her] [it] with regard to the conduct at issue, independently of higher authority; [or if] (B) __________ (name of party) in some [other] way [authorized,] [participated in] [or] [ratified] the conduct of __________ (name of agent or employee). Source: NM UJI 13-1827 Instruction whether This instruction should be substituted for the second paragraph of Stock 25A or incorporated immediately after that paragraph depending on vicarious liability or both direct and vicarious liability are at issue. STOCK INSTRUCTION 26 (Nominal Damages) If you find that __________ (plaintiff) has established a right to recover from __________ (defendant) but that __________ (plaintiff) has suffered [no harm], [insignificant harm], [or] [damages that cannot be ascertained], you may award [him] [her] [it] nominal damages. Nominal damages are a trivial sum of money, usually one cent or one dollar, awarded to a party who has established a right to recover but has not established that [he] [she] [it] is entitled to compensatory damages. [The award of a nominal sum for actual damages would not prevent you from awarding punitive damages in such amount as you deem appropriate, if you find that the award of punitive damages is justified under these circumstances.] Source: NM UJI 13-1832, with additional optional language in brackets STOCK INSTRUCTION 27 (Duty to Follow Instructions) The law of this case is contained in these instructions and it is your duty to follow them. You must consider these instructions as a whole, not picking out one instruction, or parts thereof, and disregarding others. Faithful performance by you of your duties is vital to the administration of justice. Source: NM UJI 13-2001 & 13-2002 STOCK INSTRUCTION 28 (Credibility of Witnesses) I have said that you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You alone are the judges of the credibility or “believability” of the witnesses and of the weight to be given to the testimony of each of them. In determining the credit to be given to the testimony of any witness, you may take into account the witness’s ability and opportunity to observe, the witness’s memory, the witness’s manner while testifying, any interest, bias or prejudice that the witness may have and the reasonableness of the testimony, considered in light of all the evidence in the case. You may, in short, accept or reject the testimony of any witness in whole or in part. Source: NM UJI 12-2003, with additions STOCK INSTRUCTION 29 (Impeachment of Witness) A witness may be discredited or impeached by contradictory evidence or inconsistent conduct, or by evidence that at other times the witness has made material statements, under oath or otherwise, which are inconsistent with the present testimony of the witness. If you believe that any witness has been impeached or discredited, it is up to you to give the testimony of that witness only such credit as you may think it deserves. Source: NM UJI 13-2004, with “up to you” substituted for “your exclusive province” STOCK INSTRUCTION 30 (All Jurors to Participate) The jury acts as a body. Therefore, on every question which the jury must answer it is necessary that all jurors participate. Before a question can be answered, all of you must agree upon each answer. In other words, your verdict must be unanimous. Source: NM UJI 13-2006, modified to meet unanimity requirement and with added last sentence STOCK INSTRUCTION 31 (Duty to Deliberate) It is your sworn duty as jurors to discuss the case with one another in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after full consideration of the evidence with the other members of the jury. While you are discussing the case, do not hesitate to re-examine your own opinion and change your mind if you become convinced that you are wrong. However, do not give up your honest beliefs solely because the others think differently, or merely to finish the case. Remember that in a very real way you are the judges—judges of the facts. Your only interest is to seek the truth from the evidence in the case. Source: 5th Circuit Pattern Instruction 2.11 STOCK INSTRUCTION 32 (Concluding Instruction) Upon retiring to the jury room, and before commencing your deliberations, you will first elect a foreperson. The foreperson will preside over your deliberations and will be your spokesperson here in court. You will be given the Court’s instructions and [a special] verdict form[s]. [In this case it will be necessary for you to answer the preliminary questions presented to you on the verdict form.] If you recess during your deliberations, follow all of the instructions that I have given you about your conduct during the trial. If, during your deliberations, you should desire to communicate with me, please put your message or question in writing on one of the forms that my court staff will provide to you. Your note should be signed by the foreperson and then passed to the court security officer who will bring it to my attention. Never attempt to communicate with me except by a written note signed by your foreperson. I will respond as promptly as possible, either in writing or by having you returned to the courtroom. I will always first disclose to the attorneys your question and my response before I answer your question. If I reply to you in writing, please leave both the message and the reply in the jury room. These documents should not be thrown away, even at the conclusion of your deliberations. Bear in mind always that you are not to reveal to me or to any person how you stand, numerically or otherwise, until you have reached a unanimous verdict. Do not disclose any vote count in any communications with the Court. After you have reached your unanimous verdict, your foreperson is to fill in the answers to the questions on the verdict form and date and sign the form. The completed, signed verdict form should then be placed in the envelope that will be provided to you. After completing the verdict form, please also send a note to the court security officer indicating that you have reached a verdict and are ready to return to the courtroom. Again, any notes you pass to the court security officer should not state what your verdict is or how you have voted. DATED this _____ day of _____________, 2____. ______________________________ Gregory B. Wormuth United States Magistrate Judge Sources: First two paragraphs—derived from first two paragraphs of NM UJI 13-2009 stock Remaining paragraphs—derived from 9th Circuit Pattern Instruction 4.3 and instructions of other judges of this Court