“Bare Bones” does not mean No Bones!! A closing argument may be used to “Flesh Out” the instructions. But as currently applied in the courts, the Bare Bones rule is ALL BONE AND NO FLESH.

 

By Judge Stan Billingsley (Ret.)
 

Justice Palmore is credited with creating the Ky. Bare Bones rule for jury instructions in Cox v. Cooper, 510 S.W.2d 530 (Ky., 1974) when he said:
 

“Instructions] should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”‘
 

Palmore has been quoted as saying:
 

what a lawyer should do if he or she is not satisfied with the trial court’s instructions: “[I]f counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation.”  (This quote comes from the Cox decision.)
 

Other decisions have explained Palmore’s Bare Bones rule and said:
 

The concept permits the instructions to be “fleshed out” in closing argument.”
 

 

      Justice Palmore did not originally forbid more robust instructions that “defined the rights of a litigant”, indeed he wrote that sometimes that something other than Bare Bones instructions might be appropriate.  In his ruling in Cox  he qualified the strict application of the rule when he said the Bare Bones rule should only be applied  “as a general proposition”.
 

Justice Palmore explained the Bare Bones rule in:
 

Cox v. Cooper, 510 S.W.2d 530 (Ky., 1974)
“ It may sometimes be appropriate for instructions to define the rights of a litigant, as for example in the instance of a peace officer sued for assault incident to an arrest, but as a general proposition they should be couched in terms of duties only. Recovery hinges not on the question of who was within his rights, but who breached a duty.
If the duty is simple enough to be stated without defining it in terms of the rights of one party or the other, that is all that is necessary, desirable, or proper.
In this case the jury was instructed that each party had the duty of not entering on the red light, and as to the light that was enough. Unmistakably it had to mean that they had the right to enter on any other color, and if counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation. Our approach to instructions is that they should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.
        Schwartz v. Humphrey, Ky., 437 S.W.2d 750 (1969), we considered at some length the question of just when it is appropriate, vel non, to confine the instructions in a controlled intersection case to the narrow issue of which driver had the traffic light in his favor. When the evidence would support an inference that both vehicles entered the intersection properly, or that one or both of the drivers thereafter could have avoided the collision by the exercise of ordinary care (as it often may be when the width of the intersecting street is such that in the course of crossing it a driver has time to observe the other vehicle’s intrusion and space in which to stop or turn aside), the instructions should not be limited to the issue of which one violated the red light. However, far from being inconsistent with that principle, the instructions given in this case were entirely in conformity with it.”
Just how far can counsel go in “fleshing out the skelton of the Bare Bones instructions?
 

While the Bare Bones rule has been readily applied by the courts, the limits of trial counsel’s right to then “flesh out” those instructions is not as easy to apply in the trial situation.  
 

In 2003 the court in Yahya v. Lexmark (see below) appeared to leave a great deal of discretion to trial counsel on how far they could go to “flesh out” the jury instructions.   In Yahya the court said an attorney could flesh out the jury instructions “…to the extent and to the measure that the respective counsel deem appropriate.”
 

Other rulings cited herein, (See Collins case)   appear to limit this right to explaining “what such instructions mean, or do not mean.”
 

One important point is not answered by the courts. What about those situations where the “duty” is stated in the instruction in the most general language possible, and the court refuses an instruction stating the actual wording of the applicable statute creating that “duty”.  How can one explain what the instruction means if they can’t discuss the actual wording of the statute that created the duty as cited in the instruction? 
 

There is no clear court ruling that says the attorney in his closing argument may cite the specific law upon which the duty mentioned in the instruction is based. Therefore there is no court ruling which allows the attorney in his closing argument to explain the underlying law.
 

In practice, it is not unusual for the court to issue an instruction compliant with the “bare bones” rule, but then ordering the attorney not to discuss the underlying statute which creates the duty upon which the instruction is based.
 

Such a practice effectively guts the “fleshing out” remedy to an incomplete “bare bones” instruction. 
 

We would suggest that our appellate courts should provide some guidance on whether or not an attorney may cite the statute upon which the instruction is based, and to provide the bench and bar with guidance about the extent of the right to “flesh out” the jury instructions on closing argument.
 

In a recent case issued by the Ky. Supreme Court Ky. Supreme Court –  2007-SC-000006-MR.pdf  TO BE PUBLISHED – McCracken Circuit Ct. -  Dec. 18, 2008  STANLEY STOKES  V.  COMMONWEALTH OF KENTUCKY, the court allowed the Commonwealth to introduce a definition from a medical dictionary under the Judicial Notice rule.
 

 But in another decision handed down the same day Ky. Supreme Court –  2007-SC-000377-MR.pdf  TO BE PUBLISHED – Fayette Circuit Court  Dec. 18, 2008
 Ondra Leon Clay  V. Commonwealth of Kentucky , the court virtually forbade the reading of a statute to the jury.
“…taking judicial notice of “the law” during the course of a trial is tantamount to instructing the jury prior to the close of the evidence.   Obviously, a court could still take judicial notice of a law, if that law constituted an adjudicative fact in a particular case . An example of this would be proving the legal drinking age if there was a dispute as to what that age is, or any other time that it might be necessary to prove what the law is as a question of fact.

This philosophy places a “dictionary definition” in a higher evidentiary status than a relevant statute published in the Kentucky Revised Statutes.

If counsel cannot read the text of the statute and explain it, and the trial court using the “bare bones” doctrine feels compelled not to instruct the jury on the actual language of the relevant law, and if the “fleshing out” doctrine is limited to only explaining the actual words contained in the bare bones instruction, then the arguing lawyer is left with nothing to explain.  

Ergo, there is virtually no meaning to the “fleshing out’ right as currently applied in our trial courts. 

 

Authorities:
 

 

Yahya v. Lexmark International, Inc. (Ky. App., 2003)
 

“Kentucky has adopted the “bare bones” approach to jury instructions. Rogers v. Kasdan, Ky., 612 S.W.2d 133. It is the duty of counsel to flesh out the instructions in closing arguments to the extent and to the measure that the respective counsel deem appropriate. Humana, Inc. v. Fairchild, Ky. App., 603 S.W.2d 918”
 

We cannot find a direct quote as used in Yahya above, but in Humana, Inc. v. Fairchild, Ky. App., 603 S.W.2d 918, the court did say:
 

“It is the respective counsel’s duty to see to it that the jury clearly understands what such instructions mean, or do not mean. Collins v. Galbraith, Ky., 494 S.W.2d 527 (1973)
 

But in Collins v. Galbraith the court held:
 

   “ In conclusion, it may be well to mention that whenever counsel feels that jurors might draw inferences that are not warranted by the specific terminology of the instructions, his opportunity to guard against it comes in the closing argument.
 

If instruction are to be kept concise and to the point, as they should be, their supplementation, elaboration and detailed explanation fall within the realm of advocacy.
 

Contrary to the practice in some jurisdictions, where the trial judge comments at length to the jury on the law of the case, the traditional objective of our form of instructions is to confine the judge’s function to the bare essentials and let counsel see to it that the jury clearly understands what the instructions mean and what they do not mean.
 

 

 

Harp v. Commonwealth, No. 2007-SC-000288-MR (Ky. 10/23/2008) (Ky., 2008)
Our precedent of longstanding leaves no doubt that we have adhered to the “bare bones” principle of jury instructions.9 Indeed, former Chief Justice Palmore apparently coined the “bare bones” phrase in a 1974 civil case, although the phrase has been similarly applied to criminal cases.10 We have explained this bare bones approach to instructions as meaning that as a general matter, “evidentiary matters should be omitted from the instructions and left to the lawyers to flesh out in closing arguments.”11 Or, as we more recently explained, jury instructions should tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue while still “providing enough information to a jury to make it aware of the respective legal duties of the parties.12
        We remain committed to the bare bones instructional principle, confident that it works well in most cases to “pare down unfamiliar and often complicated issues in a manner that jurors, who are often not familiar with legal principles,
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can understand.”13 But instructions must not be so bare bones as to be misleading or misstate the law.14
        As mentioned, we have determined that the law requires specific identifiers to be placed in each count in a case involving multiple counts of the same offense. So a failure to include at least some basic evidentiary identification in the sexual abuse instructions at hand was a misstatement of the law. Furthermore, the lack of specificity in the instructions readily lends itself to a potential unanimity problem.15
        No doubt able counsel could—and in this case, did—attempt to “flesh out” the generic sexual abuse instructions in closing argument by telling the jury which specific act of sexual abuse was covered by which specific count of the charges. And, in dictum, we have appeared to approve of such attempted corrective and curative action by the Commonwealth.
In essence, our imprecise and unfortunate dictum in Bell can be taken to stand for the proposition that able counsel may “cure” a defective jury instruction in closing argument. But we very recently made it clear in a unanimous opinion that jury instructions, which a jury is presumed to follow, must be based solely upon the evidence; and “an attorney’s arguments do not constitute evidence.”20
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Therefore, we reached the plain conclusion that “the arguments of counsel are not sufficient to rehabilitate otherwise erroneous or imprecise jury instructions.”
the concept of fleshing out bare bones instructions permits counsel to attempt to explain the instructions to the jury but does not permit counsel to attempt to correct erroneous jury instructions.
 

Bell is overruled to the extent that its dictum suggests that a failure to include the requisite specific identifying language in jury instructions can be rendered a harmless error by the curative powers of counsel’s closing argument
 

 

 

Olfice, Inc. v. Wilkey, 173 S.W.3d 226 (KY, 2005)
 

 Following Cox, several other decisions from this Court and the Court of Appeals have reaffirmed our adherence to the use of bare bones instructions. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.1992). (“In instructing juries, Kentucky uses the `bare bones’ method…. `[Instructions] should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”‘) Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky.1981).
(“The general rule for the content of jury instructions on negligence is that they should be couched in terms of duty. They should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”) King v. Grecco, 111 S.W.3d 877, 882 (Ky.App.2002). (“[I]t is apparent that Kentucky is not a jurisdiction which favors instructing the jury at length regarding every subtle nuance of the law which may be relevant to a particular case.”)
        In addition to case law, several commentators have enunciated similar principles.
        [T]he function of instructions is only to state what the jury must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof. In Kentucky, the content of jury instructions on negligence should be couched in terms of duty. They should not contain an abundance of detail, but should provide only the `bare bones’ of the question for jury determination.
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        Kurt A. Philips, Jr., 7 Kentucky Practice: Rules of Civil Procedure Annotated, § 51 (5th ed.1995) (citing Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky.1974)). Justice Palmore likewise observed:
        The basic function of instructions in Kentucky is to tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue in favor of the party who bears the burden of proof on that issue. In other jurisdictions, as at common law, it may be appropriate to say that the purpose of instructions is to advise the jury on the law of the case, but not in this state.
        Justice Charles M. Leibson, “Legal Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the Use of Expert Testimony,” 75 Ky. L.J. 1, 40 (1986) (quoting John S. Palmore, Kentucky Instructions to Juries, § 13.01 (1977)).
        From the case law and commentary, it is clear that Kentucky law mandates the use of “bare bones” jury instructions in all civil cases. See Lumpkins v. City of Louisville, 157 S.W.3d 601 (Ky.2005). The Court of Appeals in this case correctly stated that jury instructions should refrain from elaborating on an abundance of detail, but still strike the proper balance in providing enough information to a jury to make it fully aware of the respective legal duties of the parties. King v. Ford Motor Co., 209 F.3d 886 (6th Cir.2000).
Indeed, “bare bones” instructions serve the courts and juries well because they pare down unfamiliar and often complicated issues in a manner that jurors, who are often not familiar with legal principles, can understand.
        ”Bare bones” instructions are proper if they correctly advise the jury about “what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof” on that issue. Meyers, 840 S.W.2d at 824; Leibson, supra. The question to be considered on an appeal of an allegedly erroneous instruction is whether the instruction misstated the law. Meyers, supra, at 823. It is within a trial court’s discretion to deny a requested instruction, and its decision will not be reversed absent an abuse of that discretion. King, supra.
        Thus, the question herein is whether the instructions misstated the law by failing to sufficiently advise the jury “what it [had to] believe from the evidence in order to return a verdict in favor of the party who [had] the burden of proof.” Meyers, supra.
 

Lumpkins v. City of Louisville, No. 2003-SC-0267-DG (KY 3/17/2005) (KY, 2005)
 

The Kentucky practice of “bare bones” instructions applies to all litigation including civil rights cases. The concept permits the instructions to be “fleshed out” in closing argument. See Rogers v. Kasdan, 612 S.W.2d 133 (Ky. 1981).
 

 

 

Perdue v. CSX Transportation, Inc., No. 2006-CA-000724-MR (Ky. App. 4/27/2007) (Ky. App., 2007)
 

 This jurisdiction “uses the `bare bones’ method. This method does not include explaining evidentiary matters or evidentiary presumptions with the instructions. `They should not contain an abundance of detail, but should provide only the `bare bones’ of the question for jury determination. This skeleton may then be fleshed out by counsel on closing argument.’ Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky. 1992) (Citation omitted.). Instructions must advise the jury “what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof.” Meyers, id.
 

Our question on review is not whether Perdue’s tendered instructions stated the substantive law more specifically, but to determine whether the delivered instruction misstated the law. Olfice, Inc. v. Wilkey, 173 S.W.3d 226 (Ky. 2005).
 

“Bare bones” jury instructions must be given with the understanding that they are merely a framework for the applicable legal principles. It becomes the role of counsel, then, to flesh out during closing argument the legal nuances
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that are not included within the language of the instruction. See Rogers [v. Kasdan], 612 S.W.2d [133,] 136 [(Ky. 1981)]. This principle was aptly stated by Justice Palmore in the Cox decision, wherein he explained what a lawyer should do if he or she is not satisfied with the trial court’s instructions: “[I]f counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation.” Cox [v. Cooper], 510 S.W.2d [530,] 535 [(Ky. 1974)].
The trial court’s instruction correctly stated the law, and the court did not abuse its discretion in refusing to give Perdue’s tendered instruction that exceeded Kentucky’s “bare bones” approach and “gave undue prominence to facts and issues.” See Rogers v. Kasdan, 612 S.W.2d at 136.
 

…The instructions were not misleading and properly guided the jury in its determination of whether the brake malfunctioned on September 26 and caused Perdue’s injuries. Perdue was free to argue during his closing argument about any of the particulars omitted from the instructions. The trial court did not abuse its discretion in failing to deliver Perdue’s tendered instructions.

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