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9/5/2006
DAC DETAILS: What instructions did the judge give the jury?

Instruction No. 1

Ladies and Gentlemen of the Jury:

Now that you have heard the evidence and will soon hear argument, it becomes my duty to give you the instructions of the court as to the law applicable to this case. It is your duty as jurors to follow the law as I shall state it to you, and to apply the law to the facts as you find them from the evidence in the case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of law stated by me.

Counsel may quite properly refer to some of the governing rules of law in their arguments. If, however, any difference appears to you between the law as stated by counsel and that stated by the court in these instructions, you are, of course, to be governed by the court's instructions.

Nothing I say in these instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts, but rather yours.

You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, bias, prejudice, or public opinion. All parties expect that you will carefully and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences.

Anything you may have seen or heard outside the courtroom is not evidence, and must be disregarded entirely.

Statements and arguments of counsel are not evidence in the case. However, when the attorneys on both sides have stipulated or agreed as to the existence of a fact, the jury must, unless otherwise instructed, accept the stipulation and regard that fact as proved.

Unless you are otherwise instructed, the evidence in the case consists of the sworn testimony of the witnesses, regardless of who may have called them, all exhibits received in evidence, regardless of who may have produced them, and all facts which may have been admitted or stipulated.

The mere number of witnesses appearing for or against a particular fact, issue, or proposition does not in and of itself prove or disprove that fact, issue, or proposition.

Any evidence as to which an objection was sustained by the court, and any evidence ordered stricken by the court, must be disregarded entirely.

You are to consider only the evidence in the case. However, in your consideration of the evidence, you are not limited to just the statements of the witnesses. In other words, you are not limited solely to what you see and hear as the witnesses testified. You are permitted to draw, from the facts which you find have been proved, such reasonable inferences as you feel are justified in the light of your experience.

At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it is difficult and time consuming for the reporter to read back lengthy testimony.

Each verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree. Any verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. However, do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning 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 and return a just verdict based upon the evidence in the case and the law as the court has presented it to you.

Instruction No. 2

This case is a civil case, as distinguished from a criminal case. The parties who brought this action are called the plaintiffs. The party against whom the case is brought is called the defendant. In this case, the plaintiffs are Shane Paul, William Meck, Jeff Matthews, and Richard Sisemore, and the defendant is USIS Commercial Services, Inc. d/b/a DAC Services (USIS). The following is a summary of the claims and defenses in this case.

The following plaintiffs have the following claims which now are being submitted to you for your determination.

Plaintiffs Shane Paul, William Meck, Jeff Matthews, and Richard Sisemore have sued the defendant, USIS Commercial Services, Inc. d/b/a DAC Services (USIS), under the Fair Credit Reporting Act (FCRA). The FCRA makes it unlawful for a consumer reporting agency, such as USIS, to willfully fail to follow reasonable procedures to assure maximum possible accuracy of the information concerning the plaintiff in a consumer report prepared by the defendant. Each of these plaintiffs claims that USIS willfully failed to follow reasonable procedures to assure maximum possible accuracy of the information concerning the plaintiffs in consumer reports prepared by USIS. Each plaintiff is seeking statutory and punitive damages.

USIS denies the plaintiffs' allegations and contends that it followed reasonable procedures to assure maximum possible accuracy of the information concerning the plaintiffs in the consumer reports prepared by USIS concerning each of the plaintiffs.

Instruction No. 3

In this civil action the burden is on each of the plaintiffs to prove each essential element of each of their claims by a preponderance of the evidence.

To "establish by a preponderance of the evidence" means to prove that something is more likely so than it is not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared to that opposed to it, has more convincing force, and produces in your mind a belief that what is sought to be proved is more likely true than not true.

In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them, and any fact that has been admitted, or stipulated.

"Burden of proof" means the obligation a party has to prove each essential element of a claim by a preponderance of the evidence. The party with the burden of proof can use evidence produced by any party to persuade you. If a party fails to meet the burden of proof as to any claim, or if the evidence weighs so evenly that you are unable to say that there is a preponderance on either side, then you must reject that claim.

Instruction No. 4

There are two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence - such as the testimony of an eyewitness or earwitness. The other is indirect or circumstantial evidence - the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts.

As a general rule, the law makes no distinction between direct or circumstantial evidence, but requires that the jury find the facts in accordance with the preponderance of all the evidence in the case, both direct and circumstantial.

Instruction No. 5

The questions asked by a lawyer for either party to this case are not evidence. If a lawyer asks a question of a witness which contains an assertion of fact, therefore, you may not consider the assertion by the lawyer as any evidence of that fact. Only the answers are evidence.

Instruction No. 6

You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witnesses, by the manner in which the witness testifies, by the character of the testimony given, and by evidence to the contrary of the testimony given.

You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind and demeanor or manner while on the stand. Consider the witness' ability to observe the matters as to which he or she has testified, and whether he or she impresses you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case, the manner in which each witness might be affected by the verdict, and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.

Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently, and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood.

After making your own judgment, you will give the testimony of each witness such weight, if any, as you may think it deserves.

A witness may be discredited or impeached by contradictory evidence; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, which is inconsistent with the witness' present testimony. You may, in short, accept or reject the testimony of any witness in whole or in part. 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.

If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness' testimony in other particulars and you may reject all the testimony of that witness or give it such credibility as you may think it deserves. An act or omission is "knowingly" done if voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

Instruction No. 7

The rules of evidence ordinarily do not permit witnesses to testify as to their own opinions or their own conclusions about important questions in a trial. An exception to this rule exists as to those witnesses who are described as "expert witnesses." An "expert witness" is someone who, by education, background, training, or experience, may have become knowledgeable in some technical, scientific, or very specialized area. If such knowledge or experience may be of assistance to you in understanding some of the evidence or in determining a fact, an "expert witness" in that area may state an opinion as to a matter in which he or she claims to be an expert.

You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. You should consider the testimony of expert witnesses just as you consider other evidence in this case. If you should decide that the opinion of an expert witness is not based upon sufficient education or experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you should conclude that the opinion is outweighed by other evidence, including that of other "expert witnesses," you may disregard the opinion in part or in its entirety.

As I have told you several times, you, the jury, are the sole judges of the facts of this case.

Instruction No. 8

If any reference by the Court or by counsel to matters of testimony or exhibits does not coincide with your own recollection of that evidence, it is your recollection that should control during your deliberations and not the statements of the Court or of counsel. You are the sole judges of the evidence received in this case.

Instruction No. 9

Any finding of fact you make must be based on probabilities, not possibilities. A finding of fact may not be based on surmise, speculation, or conjecture.

Instruction No. 10

The weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.

Instruction No. 11

There is nothing particularly different in the way that a juror should consider the evidence in a trial from that in which any reasonable and careful person would deal with any very important question that must be resolved by examining facts, opinions, and evidence. You are expected to use your good sense in considering and evaluating the evidence in the case. Use the evidence only for those purposes for which it has been received and give the evidence a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings.

Keep constantly in mind that it would be a violation of your sworn duty to base a verdict on anything other than the evidence received in the case and the instructions of the Court.

Instruction No. 12

It is proper to add the caution that nothing said in these instructions and nothing in any form of verdict prepared for your convenience is meant to suggest or convey in any way or manner any intimation as to what verdicts the court thinks you should find. What any verdict shall be is your sole and exclusive duty and responsibility.

Instruction No. 13

To prove the claim that defendant, USIS Commercial Services, Inc. d/b/a DAC Services (USIS), willfully failed to comply with the accuracy requirement of the Fair Credit Reporting Act (FCRA) the plaintiff whose case you are considering (either Shane Paul, William Meck, Jeff Matthews, or Richard Sisemore) must establish by a preponderance of the evidence each of the following elements:

  1. That USIS (d/b/a DAC Services) published to a prospective employer or employer of the plaintiff an Employment History Report (EHR) concerning the plaintiff whose case you are considering; and
  1. That USIS (d/b/a DAC Services) willfully failed to follow reasonable procedures to assure maximum possible accuracy of the information contained in that Employment History Report (EHR) concerning the plaintiff whose case you are considering; and
  1. That the published Employment History Report (EHR) about that plaintiff was, in fact, inaccurate; and
  1. That the willful failure of USIS (d/b/a DAC Services) to follow reasonable procedures to assure maximum possible accuracy of the information in the plaintiff's Employment History Report (EHR) caused the inaccuracy in the plaintiff's published Employment History Report (EHR).

The terms "accuracy," "caused," and "willfully" are defined in Instruction No. 14.

If after considering all of the evidence, you find that the plaintiff whose case you are considering has proven each of these elements by a preponderance of the evidence, then your verdict must be for the plaintiff whose case you are considering on his claim that USIS (d/b/a DAC Services) willfully failed to comply with the accuracy requirement of the Fair Credit Reporting Act (FCRA) and you should so indicate on the Verdict Form for the plaintiff whose case you are considering in paragraph 1.

If after considering all of the evidence, you find that the plaintiff whose case you are considering has failed to prove any one or more of the elements by a preponderance of the evidence, then your verdict must be for the defendant, USIS (d/b/a DAC Services), on the plaintiff's claim that USIS (d/b/a DAC Services) willfully failed to comply with the accuracy requirement of the Fair Credit Reporting Act and you should so indicate on the Verdict Form for the plaintiff whose case you are considering in paragraph 1.

Instruction No. 14

Certain words or phrases used in these instructions have a particular meaning. The following are definitions for these certain words or phrases.

  1. Accurate (or any of its various forms, including "accuracy") The word "accurate," when used with regard to the accuracy of the information made the subject of the Fair Credit Reporting Act (FCRA), means information that, from the perspective of the reader of the published consumer report, is reasonably meaningful, reasonably concrete, reasonably complete, reasonably precise, and true, so as not to be misleading.
  1. Cause (or any of its various forms, including "caused" or "causing"). The word "cause" means an act or failure to act which in the natural or probable sequence of events would produce the claimed result. It is a cause without which the claimed result would not have happened.
  1. Willful (or any of its various forms, including "willfully") The word "willful" means acting with a conscious disregard of the law, which means either knowing that a policy, action, or failure to act is in contravention of the rights possessed by consumers under the Fair Credit Reporting Act (FCRA), or in reckless disregard of whether the policy, action, or failure to act contravened those rights.

Instruction No. 15

For the purposes of this case:

  • Each of the plaintiffs is a "consumer" entitled to the protection and benefit of the Fair Credit Reporting Act (FCRA).
  • The DAC Employment History Reports (EHR) sent by USIS Commercial Services, Inc. d/b/a DAC Services (USIS), to its member trucking companies are "consumer reports" governed by the Fair Credit Reporting Act (FCRA).
  • Defendant USIS Commercial Services, Inc. d/b/a DAC Services (USIS), is acting as a "consumer reporting agency" governed by the Fair Credit Reporting Act (FCRA) when it sends DAC Employment History Reports (EHR) to its members.

Instruction No. 16

If a consumer reporting agency accurately transcribes, stores, and communicates consumer information received from a source that the consumer reporting agency reasonably believes to be reputable, and which consumer information is creditable on its face, the consumer reporting agency does not violate the Fair Credit Reporting Act (FCRA) simply by reporting an item of information that turns out to be inaccurate. However, when a consumer reporting agency learns or should reasonably be aware of errors in its reports that may indicate systematic problems in receiving or providing information, it must review its procedures for assuring accuracy. 

Instruction No. 17

Evidence has been admitted regarding the notification by USIS Commercial Services, Inc. d/b/a DAC Services (USIS) to consumer/drivers on completion of an investigation of a dispute brought to USIS by a consumer/driver. Under these circumstances, USIS, as a consumer reporting agency, is obligated under the Fair Credit Reporting Act (FCRA) to provide to the consumer/driver, in writing, the following information:

  1. A statement that the investigation is complete;
  2. A copy of the consumer report based on the consumer's file as revised as a result of the investigation;
  3. A notice that, if requested by the consumer, the consumer reporting agency will provide a description of the procedures used to determine the accuracy and completeness of the information along with the business name and address of any furnisher and its telephone number, if reasonably available;
  4. A notice that the consumer may add a statement to his file disputing the accuracy or completeness of the disputed information; and
  5. A notice that the consumer can request that those who received the disputed information in the past two years be sent a copy of the revised report and/or report with the consumer statement attached.

Instruction No. 18

The intent of a person or the knowledge that a person possesses at any given time may not ordinarily be proved directly because there is no way of directly scrutinizing the workings of the human mind. In determining the issue of what a person knew or what a person intended at a particular time, you may consider any statements made or acts done or omitted by that person and all other facts and circumstances received in evidence, which may aid in your determination of that person's knowledge or intent.

You may infer, but you are certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts to find from the evidence received during this trial.

Instruction No. 19

If you find in favor of a particular plaintiff on his claim that the defendant willfully violated the Fair Credit Reporting Act (FCRA), the essential elements of which are stated in Instruction No. 13, then you must award, for each violation, an amount of statutory damages of not less than $100 or not more than $1,000. A plaintiff need not prove actual damages in order for you to award statutory damages.

Instruction No. 20

If you find in favor of the plaintiff whose case you are considering on his claim that the defendant willfully violated the Fair Credit Reporting Act (FCRA), the essential elements of which are stated in Instruction No. 13, then you may impose as a penalty on the defendant, for each willful violation, an amount of punitive damages to be determined by you. You do not have to find that a plaintiff suffered actual damages in order to award punitive damages. Punitive damages are intended to punish the defendant and to deter future wrongdoing. A jury's imposition of punitive damages is an expression of its moral condemnation. Each plaintiff has the burden of proving, by a preponderance of the evidence, that punitive damages should be awarded, and the amount to be awarded, on his claim for willful violation of the Fair Credit Reporting Act (FCRA). Punitive damages may not include attorney fees.

Punitive damages, if any, should be in an amount sufficient to fulfill their purposes, but should not reflect bias, prejudice, or sympathy toward any party. In determining the amount of punitive damages you award, you may consider:

  1. The remedial purpose of the Fair Credit Reporting Act (FCRA) to deter violations of the act;
  2. The harm intended to be addressed by the Fair Credit Reporting Act (FCRA);
  3. The reprehensibility of defendant's conduct, including whether the conduct involved repeated actions or was an isolated incident, the vulnerability of the plaintiff whose case you are considering, whether the harm was the result of willful malice, trickery or deceit, or mere accident; and
  4. Defendant's ability to pay a punitive damage award.

You should also bear in mind, not only the conditions under which, and the purpose for which, the law permits an award of punitive damages to be made, but also the requirement of the law that the amount of such punitive damages must be fixed with calm discretion and sound reason and must never be either awarded, or fixed in amount, because of any sympathy or bias, or prejudice with respect to any party to the case.

Instruction No. 21

If it becomes necessary during your deliberations to communicate with the court, you may send a note by the bailiff signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court regarding the issues of the case by any means other than such a signed writing, and the court will never communicate with any member of the jury on any subject touching the merits of the case other than in writing, or orally here in open court.

If you do send a note to me containing a question or request for further direction, please bear in mind that a response takes considerable time and effort. I must first notify counsel to return to court. Then I must confer with counsel, consider their arguments and, if necessary, research the question before reducing the answer or direction to writing.

You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case.

Bear in mind also that you are never to reveal to any person - not even to the court - how the jury stands, numerically or otherwise, on the questions before you, until after you have reached unanimous verdicts.

Instruction No. 22

The original written instructions are a part of the court record. You are not permitted to write any notes on the original instructions or to deface them in any way. The original verdict forms, instructions, and trial exhibits are to be returned to the court at the conclusion of your deliberations.

On retiring to the jury room to begin your deliberations, you must elect one of your members to act as your foreperson. The foreperson will preside over your deliberations and will be your spokesperson here in court.

Any verdict you reach must represent the collective judgment of the jury. In order to return a verdict, it is necessary that each juror agree to it. In other words, any verdict you reach must be unanimous.

It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for himself and herself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and to change your opinion if convinced it is erroneous. However, do not surrender your honest conviction solely because of the opinion of your fellow jurors or for the mere purpose of returning a unanimous verdict.

Remember at all times that you are not partisans. You are judges - judges of the facts of this case. Your sole interest is to seek the truth from the evidence received during the trial.

Any verdict you reach must be based solely on the evidence received in the case. Nothing you have seen or read outside of court may be considered. Nothing that I have said or done during the course of this trial is intended, in any way, to suggest to you somehow what I think your verdicts should be. Nothing said in these instructions and nothing in any form of verdict, which has been prepared for your convenience, is to suggest or convey to you in any way or manner any intimation as to what verdicts I think you should return. What any verdict shall be is the exclusive duty and responsibility of the jury. As I have told you many times, you are the sole judges of the evidence and the facts.

Verdict forms for each of the plaintiffs' claims have been prepared for your convenience.

You will take the verdict forms to the jury room, and when you have reached unanimous agreement as to your verdicts, you will have your foreperson write your verdicts, date and sign, together with all other jurors, the verdict form, and then return with the verdict forms, original instructions, and trial exhibits to the courtroom.

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