Supreme Court Rule Changes

The Supreme Court of Missouri, in an order dated November 16, 2009, repealed Rule 15, entitled “Continuing Legal Education,” consisting of subdivisions 15.01 to 15.06, inclusive, and in lieu thereof adopted a new Rule 15, entitled Continuing Legal Education,” consisting of subdivisions 15.01 to 15.06, inclusive.

This order becomes effective January 1, 2010.

The complete text of the order may be read in its entirety at www.courts.mo.gov.


In an order dated November 16, 2009, the Supreme Court of Missouri repealed subdivision 5.01, entitled “The Advisory Committee – Membership and Tenure,” of Rule 5 (Complaints and Proceedings Thereon) and in lieu thereof adopted a new subdivision 5.01, entitled “The Advisory Committee – Membership and Tenure.”

This order became effective November 16, 2009.

The complete text of the order may be read in its entirety at www.courts.mo.gov.


The Supreme Court of Missouri, in an order dated December 14, 2009, repealed subdivision 10.28 (Publicity) of Rule 10, entitled “Non-Partisan Judicial Commissions and Judicial Evaluation,” and adopted a new subdivision 10.28 (Publicity).

This order became effective December 14, 2009.

The complete text of the order may be read in its entirety at www.courts.mo.gov.


In an order dated December 22, 2009, the Supreme Court of Missouri repealed subdivision (e)(3) of subdivision 5.28, entitled “Reinstatement,” of Rule 5 (Complaints and Proceedings Thereon) and adopted a new subdivision (e)(3) of subdivision 5.28, entitled “Reinstatement.”

This order became effective December 22, 2009.

The complete text of the order may be read in its entirety at www.courts.mo.gov.



The Supreme Court of Missouri, in an order dated December 22, 2009, repealed subdivisions (a), (b), (c), (d), and (e) of subdivision 43.01, entitled “Service of Pleadings and Other Papers,” of Rule 43 (Service and Filing of Pleadings and Papers) and adopted in lieu thereof new subdivisions (a), (b), (c), (d), and (e) of subdivision 43.01, entitled “Service of Pleadings and Other Papers.”

In the same order, the Court repealed subdivision 55.01 (Pleading Required) and subdivisions (a) and (b) of subdivision 55.03 (Signing of Pleadings, Motions and Other Papers; Appearance and Withdrawal of Counsel; Representations to Court; Sanctions) of Rule 55, entitled “Pleadings and Motions,” and adopted a new subdivision 55.01 (Pleading Required) and new subdivisions (a) and (b) of subdivision 55.03 (Signing of Pleadings, Motions and Other Papers; Appearance and Withdrawal of Counsel; Representations to Court; Sanctions).

Additionally, the Court repealed subdivision 57.01(c)(5), entitled “Signing,” of Rule 57, entitled “Interrogatories and Depositions,” and adopted a new subdivision 57.01(c)(5), entitled “Signing.”

The Court, in the same order, repealed subdivision 59.01(a), entitled “Scope,” of Rule 59 (Admission of Facts and of Genuineness of Documents) and in lieu thereof adopted a new subdivision 59.01(a), entitled “Scope.”

The Court also repealed subdivision 84.01 (Motions, Pleadings and Other Papers – Signatures, Notice and Service); subdivisions (a) and (b) of subdivision 84.05 (Briefs – When and By Whom Served and Filed); subdivision 84.07 (Service of Motions, Briefs, and Records on Appeal); subdivision 84.11 (Notice, Service of); and subdivision (a) of subdivision 84.24 (Procedure as to Original Writs) of Rule 84, entitled “Procedure in All Appellate Courts,” and in lieu thereof adopted a new subdivision 84.01 (Motions, Pleadings and Other Papers – Signatures, Notice and Service); new subdivisions (a) and (b) of subdivision 84.05 (Briefs – When and By Whom Served and Filed); a new subdivision 84.11 (Notice, Service of); and a new subdivision (a) of subdivision 84.24 (Procedure as to Original Writs).

In the same order, the Court repealed subdivision 90.01, entitled “Definitions,” and subdivision 90.07(a), entitled “Interrogatories to Garnishee – Answers to Interrogatories – Exceptions – Response,” of Rule 90, entitled “Garnishments and Sequestration,” and adopted a new subdivision 90.01, entitled “Definitions,” and a new subdivision 90.07(a), entitled “Interrogatories to Garnishee – Answers to Interrogatories – Exceptions – Response.”

Additionally, the Court corrected the title to subdivision 44.01 of Rule 44, entitled “Time.”

The Court also corrected the phrase “liable to satisfy part of all of a judgment” in subdivision 56.01(b)(2), entitled “Insurance Agreements,” of Rule 56 (General Provisions Governing Discovery).

In the same order, the Court corrected references to Rule 81.12(e) in subdivisions (a) and (b) of subdivision 81.15 (Certification of Record on Appeal) of Rule 81, entitled “Appeals.”

In addition, the Court corrected the words “against who” in subdivision 92.02(a)(3), entitled “Required Notice” of Rule 92 (Injunctions).

This order becomes effective July 1, 2010.

The complete text of the order may be read in its entirety at www.courts.mo.gov.


 

SUPREME COURT OF MISSOURI
en banc
November 23, 2009
Effective July 1, 2010
IN RE: REVISIONS TO MAI-CIVIL
TABLE OF INSTRUCTIONS
MAI 8.02 DAMAGES – F.E.L.A. – INJURY TO EMPLOYEE

(Instruction – Revision)

(Notes on Use – Revision)

MAI 32.01 AFFIRMATIVE DEFENSE - GENERALLY

(Committee Comment – Revision)

O R D E R

1. Revisions of previously approved MAI-CIVIL Instructions, Notes on Use and Committee Comments as listed above, having been prepared by the Committee on Jury Instructions - Civil and reviewed by the Court, are hereby adopted and approved.

2. The Instructions, Notes on Use and Committee Comments revised as set forth in the specific exhibits attached hereto must be used on and after July 1, 2010, and may be used prior thereto; any such use shall not be presumed to be error.

3. It is further ordered that this order and the specific exhibits attached hereto shall be published in the South Western Reporter and the Journal of The Missouri Bar.

Day - to - Day

WILLIAM RAY PRICE, JR.

Chief Justice

8.02 [2010 Revision] Damages - F.E.L.A. - Injury to Employee

(Approved November 23, 2009; Effective July 1, 2010)

If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff sustained [and is reasonably certain to sustain in the future]1 as a result of the occurrence2 mentioned in the evidence. [In determining plaintiff’s damages, you may include an amount to compensate plaintiff for the fear of cancer if you believe that such fear is genuine and serious.]3 Any award of future pecuniary damages must be included at present value. [Any award you make is not subject to income tax.]4 [If you find that plaintiff failed to mitigate damages as submitted in Instruction Number ______ , in determining plaintiff’s total damages you must not include those damages that would not have occurred without such failure.]5 [If you find plaintiff contributorily negligent as submitted in Instruction Number ______, then your award must be determined by diminishing plaintiff’s total damages in proportion to the amount of negligence attributable to plaintiff.]6

Notes on Use (2009 Revision)

(Approved November 23, 2009; Effective July 1, 2010)

1. This bracketed phrase may be added if supported by the evidence.

2. When the term “occurrence” must be modified, substitute some descriptive term that specifically describes the compensable event or conduct. For example, if the plaintiff claims that he was injured in a fall that occurred at work but the defendant claims that the injury did not result from the fall but rather resulted from a non-compensable automobile accident, the instruction may be modified to read “as a result of the fall on (the date of the compensable event).”

3. Add this bracketed sentence where the evidence supports submission of compensability of plaintiff’s fear of the future risk of contracting cancer in accordance with CSX Transportation, Inc. v. Hensley, 556 U.S. ____, 129 S.Ct. 2139, 173 L.Ed.2d 1184 (2009).

4. If requested, this bracketed sentence must be given. See: Norfolk & Western Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980).

5. If failure to mitigate damages is submitted, the damages instruction must be modified by adding this bracketed sentence. See MAI 32.07(A) for the appropriate method of submission of failure to mitigate damages in an F.E.L.A. case. Kauzlarich v. Atchison, Topeka, and Santa Fe Ry. Co., 910 S.W.2d 254 (Mo. banc 1995).

6. If contributory negligence is submitted, the damages instruction must be modified by adding this bracketed sentence. See MAI 32.07(B) for the appropriate contributory negligence instruction in an F.E.L.A. case.

32.01 Affirmative Defenses - Generally

Committee Comment (2009 New)

(Approved November 23, 2009; Effective July 1, 2010)

If a party has properly pleaded an affirmative defense pursuant to Rule 55.08, and if there is substantial evidence in support of the affirmative defense, even if there is also evidence of the contrary, then a party is entitled to an affirmative defense instruction. Romeo v. Jones, 144 S.W.3d 324 (Mo. App. 2004). The propriety of any affirmative defense is derived from either case law or statutory authority. See Dustin Meyer v. Astrazeneca Pharmaceuticals, L.P., 224 S.W.3d 106 (Mo. App. 2007), and section 537.764, RSMo.


SUPREME COURT OF MISSOURI
en banc
November 23, 2009
Effective July 1, 2010
IN RE: REVISIONS TO MAI-CIVIL
TABLE OF INSTRUCTIONS
MAI 2.01 EXPLANATORY INSTRUCTION FOR ALL CASES

(Instruction – Revision)

(Committee Comment - Revision)

O R D E R

1. Revisions of previously approved MAI-CIVIL Instructions and Committee Comments as listed above, having been prepared by the Committee on Jury Instructions - Civil and reviewed by the Court, are hereby adopted and approved.

2. The Instructions and Committee Comments revised as set forth in the specific exhibits attached hereto must be used on and after July 1, 2010, and may be used prior thereto; any such use shall not be presumed to be error.

3. It is further ordered that this order and the specific exhibits attached hereto shall be published in the South Western Reporter and the Journal of The Missouri Bar.

Day - to – Day

WILLIAM RAY PRICE, JR.

Chief Justice

2.01 [2010 Revision] Explanatory Instruction for All Cases

(Approved November 23, 2009; Effective July 1, 2010)

(1) GENERAL - JURY INSTRUCTIONS

This instruction and other instructions that I will read to you near the end of the trial are in writing. All of the written instructions will be handed to you for guidance in your deliberation when you retire to the jury room. They will direct you concerning the legal rights and duties of the parties and how the law applies to the facts that you will be called upon to decide.

(2) OPENING STATEMENTS

The trial may begin with opening statements by the lawyers as to what they expect the evidence to be. What is said in opening statements is not to be considered as proof of a fact. However, if a lawyer admits some fact on behalf of a client, the other party is relieved of the responsibility of proving that fact.

(3) EVIDENCE

After the opening statements, the plaintiff(s) will introduce evidence.1 The defendant(s) may then introduce evidence. There may be rebuttal evidence after that. The evidence may include the testimony of witnesses who may appear personally in court, the testimony of witnesses who may not appear personally but whose testimony may be read or shown to you, and exhibits, such as pictures, documents and other objects.

(4) OBJECTIONS

There may be some questions asked or evidence offered by the parties to which objections may be made. If I overrule an objection, you may consider that evidence when you deliberate on the case. If I sustain an objection, then that matter and any matter I order to be stricken is excluded as evidence and must not be considered by you in your deliberations.

(5) RULINGS OF LAW AND BENCH CONFERENCES

While the trial is in progress, I may be called upon to determine questions of law and to decide whether certain matters may be considered by you under the law. No ruling or remark that I make at any time during the trial will be intended or should be considered by you to indicate my opinion as to the facts. There may be times when the lawyers come up to talk to me out of your hearing. This will be done in order to permit me to decide questions of law. These conversations will be out of your hearing to prevent issues of law, which I must decide, from becoming mixed with issues of fact, which you must decide. We will not be trying to keep secrets from you.

(6) OPEN MINDS AND NO PRELIMINARY DISCUSSIONS

Justice requires that you keep an open mind about the case until the parties have had the opportunity to present their cases to you. You must not make up your mind about the case until all evidence, and the closing arguments of the parties, have been presented to you. You must not comment on or discuss with anyone, not even among yourselves, what you hear or learn in trial until the case is concluded and then only when all of you are present in the jury room for deliberation of the case under the final instructions I give to you.

(7) OUTSIDE INFLUENCES

During the trial, you should not remain in the presence of anyone who is discussing the case when the court is not in session. Otherwise, some outside influence or comment might influence a juror to make up his or her mind prematurely and be the cause of a possible injustice. For this reason, the lawyers and their clients are not permitted to talk with you until the trial is completed.

(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE

Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

If any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.

(9) FINAL INSTRUCTIONS

After all of the evidence has been presented, you will receive my final instructions. They will guide your deliberations on the issues of fact you are to decide in arriving at your verdict.

(10) CLOSING ARGUMENTS

After you have received my final instructions, the lawyers may make closing arguments. In closing arguments, the lawyers have the opportunity to direct your attention to the significance of evidence and to suggest the conclusions that may be drawn from the evidence.

(11) DELIBERATIONS

You will then retire to the jury room for your deliberations. It will be your duty to select a foreperson, to decide the facts, and to arrive at a verdict. When you enter into your deliberations, you will be considering the testimony of witnesses as well as other evidence. In considering the weight and value of the testimony of any witness, you may take into consideration the appearance, attitude, and behavior of the witness, the interest of the witness in the outcome of the case, the relation of the witness to any of the parties, the inclination of the witness to speak truthfully or untruthfully, and the probability or improbability of the witness’ statements. You may give any evidence or the testimony of any witness such weight and value as you believe that evidence or testimony is entitled to receive.

[(12) NOTETAKING

Each of you may take notes in this case, but you are not required to do so. I will give you notebooks. Any notes you take must be in those notebooks only. You may not take any notes out of the courtroom before the case is submitted to you for your deliberations. No one will read your notes while you are out of the courtroom. If you choose to take notes, do not allow your notetaking to interfere with your ability to observe the evidence and witnesses as they are presented.

Do not discuss or share your notes with anyone until you begin your deliberations. During the deliberations, if you choose to do so, you may use your notes and discuss them with other jurors. Notes taken during trial are not evidence. You should not assume that your notes, or those of other jurors, are more accurate than your own recollection or the recollection of other jurors.

After you reach your verdict, your notes will be collected and destroyed. No one will be allowed to read them.]2

[(13) JUROR QUESTIONS

After all parties have completed questioning each witness, any juror may anonymously submit written questions to me for my review. You may not ask questions orally or out loud. I may limit the number of questions or revise the form of any question. You must not draw any adverse inference against any party if I decide not to allow one or more of your questions for legal reasons. If I decide to allow any of your questions, I will read them to the witness and allow the witness to answer. I may then allow follow-up questions of that witness by the attorneys.]3

Committee Comment (2009 Revision)

(Approved November 23, 2009; Effective July 1, 2010)

Directions or admonitions:

a. When MAI 2.01 is read to the jury at the beginning of the case, and when it is given in writing along with the other instructions at the end of the case, it should be given “as is” without further embellishment or explanation by the trial judge.

b. However, directions or admonitions given by a trial judge to a jury during the course of trial are not instructions. Examples of such directions or admonitions include a direction not to visit the scene of an accident or an oral repetition of the admonition to refrain from discussing the case during a recess. Considerable discretion is afforded to the trial judge, subject to appropriate requests or objections of counsel, to determine the scope and frequency of such directions or admonitions.

c. Directions or admonitions may be derived from parts of MAI 2.01, as may be appropriate under the circumstances of a particular case, or may be otherwise fashioned by the court with assistance of counsel. The trial court should make a record of proposed admonitions or directions intended to be given to the jury, and an opportunity should be afforded to counsel to make requests, objections, or other record for appeal.

d. Such directions or admonitions may be used at the beginning of a case, before jury selection, throughout the trial, at each break in trial proceedings, and at the conclusion of each day. The trial court may decide that some directions or admonitions may be best delivered orally, by standardized typed cards for each juror, as a page in juror notebooks, by some combination thereof, or by some other method in the exercise of sound discretion. The Committee does not intend rigorous requirements for the use of directions or admonitions, for the frequency of delivery thereof, nor for occasional omission thereof. The guiding principles should always be the efficient administration of justice, fairness to the parties, and imparting to the jurors the importance of their individual and group roles in participating in our system of justice.

e. The following directions or admonitions may be of assistance to the bench and bar, but are not intended by the Committee to be mandatory, exclusive or exhaustive. Other directions or admonitions may also be appropriate under the circumstances of a given case.

1. Justice requires that you not make up your mind about the case until all of the evidence has been seen and heard. You must not discuss this case among yourselves or with anyone else or comment on anything you hear or learn in this trial until the case is concluded and you retire to the jury room for your deliberations. Also, you must not remain in the presence of anyone who is discussing the case when the court is not in session.

2. You must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means, about any issues in this case or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, text message, instant message, blog, tweet, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

Cell phones, other electronic devices:

The trial court has considerable discretion regarding the use of cell phones or other electronic devices in the courthouse and during trial. Judicial discretion may be exercised by oral admonition, the addition of a paragraph regarding such devices at the end of MAI 2.01, or using a separate instruction.

Other appropriate admonitions or directions to the jury may be formulated and given by the trial judge as determined in light of the particular facts or circumstances of a given case.

Juror notetaking:

Rule 69.03 provides:

Upon the court’s own motion or upon the request of any party, the court shall permit jurors to take notes. If jurors are permitted to take notes, the court shall supply each juror with suitable materials.

Jurors shall not take their notes out of the courtroom except to use their notes during deliberations immediately before discharge of the jury.

The court should collect all juror notes.

After the jury is discharged, the court shall destroy the notes promptly without permitting their review by the court or any other person.

Juror notes shall not be used to impeach a verdict.

Juror questions

Rule 69.04 provides:

(a) Upon the court’s own motion or upon motion of any party, the court may permit jurors to submit questions to witnesses. The court shall resolve any such motion before the jury is impaneled.

(b) If the court permits jurors to submit questions:

(1) The court shall instruct the jurors:

(A) On the procedure to be followed for asking such questions; and

(B) That no adverse inference is to be drawn against any party if any juror question is not allowed;

(2) After all parties have completed examination of each witness, any juror may submit written, anonymous questions;

(3) All parties shall be given an opportunity outside the hearing of the jurors to object to the substance or the form of any question;

(4) The court may limit the number of questions;

(5) The court may revise any question’s form and shall read the question to the witness or the parties may stipulate to the answer; and

(6) The court may allow any party to ask follow-up questions after consideration of the juror questions.

Distribution of instructions:

Rule 70.02(f) requires that the final instructions of the court be given to the jury in writing. While Rule 70.02 does not explicitly require that each juror be provided with a copy of the final instructions, such approach is implicitly permitted. In its report to the Supreme Court of October 2000, the Civil Jury Study Committee recommended “that each juror be given a copy of the instructions before instruction reading, final argument, and deliberation.” (Emphasis supplied.) That committee also noted that juror “understanding increased significantly when each juror received his or her own copy of the instructions.” The MAI Committee encourages compliance with this recommendation whenever feasible.


SUPREME COURT OF MISSOURI
en banc
December 23, 2009
Effective July 1, 2010
In re: Forms for use by self-represented parties in certain proceedings

O R D E R

1. The materials attached hereto, having been prepared by this Court’s Committee on Access to Family Courts and reviewed by the Court, are hereby adopted and approved effective July 1, 2010, but the forms may be used prior thereto.

2. Pursuant to Rule 88.09, effective July 1, 2010, the forms attached hereto shall be accepted by the courts of this state until disapproved or superceded by this Court. The forms attached hereto may be accepted by the courts of this state prior thereto. These forms supercede any similar forms previously approved by this Court. Every self-represented party who participates in a proceeding for dissolution of marriage, legal separation, parentage, or the modification of a judgment in any such proceeding shall use the forms attached if applicable.

3. It is further ordered that this order shall be published in the South Western Reporter and the Journal of The Missouri Bar. The materials attached need not be published with the order if reference is made that the materials can be accessed at http://www.courts.mo.gov and clicking on the links to “Representing Yourself” and “Legal Forms.”

Day - to - Day

WILLIAM RAY PRICE, JR.

Chief Justice

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