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Van v. Language Line LLC

United States District Court, N.D. California, San Jose Division

July 27, 2016



          LUCY H. KOH United States District Judge

         Depending on the evidence presented at trial on July 28, 2016, the Court may remove the following from the proposed final jury instructions:

• Evidence for a limited purpose language in Instruction No. 5 What is Not Evidence
• Instruction No. 8 Impeachment Evidence - Witness
• Instruction No. 9 Evidence for Limited Purpose
• Instruction No. 11 Charts and Summaries Not Received in Evidence

         In addition, the Court will not give the proposed instruction Deposition in Lieu of Live Testimony. No deposition testimony was offered by Plaintiff Nathalie Thuy Van, and Defendant Language Line, LLC did not designate any deposition testimony.

         The parties shall file any objections to the jury instructions or the verdict form by 9:30 a.m. on July 28, 2016. The Court will also hold a jury instruction conference at the close of evidence.

         IT IS SO ORDERED.


         1. DUTY OF JURY

         Members of the Jury: Now that you have heard all of the evidence, it is my duty to instruct you on the law that applies to this case.

         Each of you has received a copy of these instructions that you may take with you to the jury room to consult during your deliberations.

         It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so.

         Please do not read into these instructions or anything that I may say or do or have said or done that I have an opinion regarding the evidence or what your verdict should be.

         Source: Ninth Circuit Model Civil Jury Instructions - 1.1C (2007 ed.).


         All parties are equal before the law and a plaintiff in pro per (a plaintiff without the representation of a professional attorney) and a corporation are entitled to the same fair and conscientious consideration by you as any party.

         Source: Plaintiff’s proposed instruction.


         When a party has the burden of proof on any claim by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim is more probably true than not true.

         You should base your decision on all of the evidence, regardless of which party presented it.

         Source: Ninth Circuit Model Civil Jury Instructions - 1.3 (2007 ed.).

         4. WHAT IS EVIDENCE

         The evidence you are to consider in deciding what the facts are consists of:

(1) the sworn testimony of any witness;
(2) the exhibits which are received in evidence;
(3) any facts to which the parties have agreed; and
(4) any facts that I may instruct you to accept as proved.

         Source: Ninth Circuit Model Civil Jury Instructions - 1.6 (2007 ed.), as modified.


         In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:

(1) Arguments and statements by Mr. Kelly, Mr. Van der Heide, or by Ms. Van when she is not testifying as a witness, are not evidence. What they said in their opening statements, may say in closing arguments, and said at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the parties have stated them, your memory of them controls.
(2) Questions and objections by Mr. Kelly, Mr. Van der Heide, or Ms. Van are not evidence. They have a right to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it.
(3) Testimony that is excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. [In addition some evidence may be received only for a limited purpose; when I instruct you to consider certain evidence only for a limited purpose, you must do so and you may not consider that evidence for any other purpose.]
(4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

         Source: Ninth Circuit Model Civil Jury Instructions - 1.7 (2007 ed.), as modified.


         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. It is for you to decide how much weight to give to any evidence.

         By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may provide a different explanation for the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience and common sense.

         Source: Ninth Circuit Model Civil Jury Instructions - 1.9 (2007 ed.).


         In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

         In considering the testimony of any witness, you may take into account:

(1) the opportunity and ability of the witness to see or hear or know the things testified to;
(2) the witness’s memory;
(3) the witness’s manner while testifying;
(4) the witness’s interest in the outcome of the case and any bias or prejudice;
(5) whether other evidence contradicted the witness’s testimony;
(6) the reasonableness of the witness’s testimony in light of all the evidence; and
(7) any other factors that bear on believability.

         Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people may see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

         However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. On the other hand, if you think the witness testified untruthfully about some things but told the ...

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