The following comparison looks at California's old civil instructions (known as BAJI) and new instructions approved (in July 2003) by the Judicial Council of California.  For now, at least, judges are free to use either the traditional instructions or the new ones.  Incidentally, for some unknown reason I am a member of the criminal committee of the task force on jury instruction (my legal expertise is mainly in civil law), not the civil committee which produced these instructions.  But I have worked with members of the civil committee and have provided them with comments on their instructions, so I may have had some modest contribution to the ultimate product.
    I have tried to give a selection of instructions that might, roughly speaking, be used in an actual negligence trial.  I did not, however, add instructions on damages and concluding instructions that would normally come at the end of the charge.

BAJI 1.00. Respective Duties of Judge and Jury

Ladies and Gentlemen of the Jury:
It is now my duty to instruct you on the law that applies to this case. It is your duty to follow that law.
As jurors it is your duty to determine the effect and value of the evidence and to decide all questions of fact.
You must not be influenced by sympathy, prejudice or passion.

Comment:  This introductory instruction is not bad in terms of language.  
    There is no new instruction that parallels it in the introductory series, but there is one that comes towards the end of the seriesand allows for a closer comparison of the language.  Notice that sometimes the new instructions are somewhat longer than the old ones.  The old ones have an economy of style that has a certain appeal, but which do not help comprehensibility.

New instruction No. 5000
Duties of the Judge and Jury

    Members of the jury, you have now heard all the evidence [and the closing
arguments of the attorneys]. [The attorneys will have one last chance to talk to you
in closing argument. But before they do, it] [It] is my duty to instruct you on the law
that applies to this case. You will have a copy of my instructions with you when you
go to the jury room to deliberate. [I have provided each of you with your own copy
of the instructions.] [I will display each instruction on the screen.]
    You, and only you, must decide what the facts are. You must consider all the
evidence and then decide what you think really happened. You must decide the facts
based on the evidence admitted in this trial. You must not let bias, sympathy,
prejudice, or public opinion influence your decision.
    I will now tell you the law that you must follow to reach your verdict. You must
follow the law exactly as I give it to you, even if you disagree with it. If the attorneys
have said anything different about what the law means, you must follow what I say.
    [rest of instruction omitted]

BAJI 1.01. Instructions to Be Considered as a Whole

If any matter is repeated or stated in different ways in my instructions, no emphasis is intended. Do not draw any inference because of a repetition.
Do not single out any individual rule or instruction and ignore the others. Consider all the instructions as a whole and each in the light of the others.
The order in which the instructions are given has no significance as to their relative importance.

Comment:  Again, this instruction has a rather turgid style typical of so many existing instructions (not just in California!).  Note that the judge uses the passive voice quite a bit: "is repeated" or "is intended"--it is the judge (or instructions) who repeats and does not intend emphasis, so why not just say "if I repeat an instruction or say it in a different way, that does not mean that I intend to emphasize it over other instructions."  And that third paragraph--why not just say that the order does not matter?
    The new version (part of instruction No. 5000) is, once again, considerably more fluent:

Pay careful attention to all the instructions that I give you. All the instructions are
important because together they state the law that you will use in this case. You
must consider all of the instructions together....

If I repeat any ideas or rules of law during my instructions, that does not mean that
these ideas or rules are more important than the others are. In addition, the order of
the instructions does not make any difference.

BAJI 1.02. Statements of Counsel--Stipulation to a Fact--Evidence Stricken Out--Insinuations of Questions

Statements of counsel are not evidence; [however, if counsel have stipulated to a fact,] [or] [a fact has been admitted by counsel,] accept that fact as having been conclusively proved.]
Do not speculate as to the answers to questions to which objections were sustained or the reasons for the objections.
Do not consider any evidence that was stricken; stricken evidence must be treated as though you had never known of it.
    A suggestion in a question is not evidence unless it is adopted by the answer. A question by itself is not evidence. Consider it only to the extent it is adopted by the answer.

Comment:   That second paragraph is quite something, containing several levels of embedding.  The word stricken is also a bit odd--usually it means that someone got an awful disease (she was stricken by smallpox).  And since when do answers adopt questions?  Below is the equivalent language from the new instructions.  Again, it is longer than the terse and almost poetic statements of the old instructions, but the language is also substantially more informative, it seems to me:

New Instruction No. 106

[first paragraphs omitted]
    The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence.
    You should not think that something is true just because an attorney’s question
suggests that it is true. However, the attorneys for both sides can agree that certain
facts are true. This agreement is called a stipulation. No other proof is needed and
you must accept those facts as true in this trial.
    Each side has the right to object to evidence offered by the other side. If I do not
agree with the objection, I will say it is overruled. If I overrule an objection, the
witness will answer and you may consider the evidence. If I agree with the objection,
I will say it is sustained. If I sustain an objection, you must ignore the question. If
the witness did not answer, you must not guess what he or she might have said or
why I sustained the objection. If the witness has already answered, you must ignore
the answer.
    Sometimes an attorney may make a motion to strike testimony that you have heard.
If I grant the motion, you must totally disregard that testimony. You must treat it as
though it did not exist.

BAJI 2.00. Direct and Circumstantial Evidence--Inferences

Evidence consists of testimony, writings, material objects or other things presented to the senses and offered to prove whether a fact exists or does not exist.
Evidence is either direct or circumstantial.
Direct evidence is evidence that directly proves a fact. It is evidence which by itself, if found to be true, establishes that fact.
Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn.
A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.
It is not necessary that facts be proved by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other.

Comment:  This sounds like something written by a German philosopher around two centuries ago and directly translated into English.  How many people today talk about presenting evidence to the senses?  Is that what you do when you smell a rose or, for that matter, when you see someone rob a bank?  Also, most people don't talk much about drawing inferences, even though they do so every day.  Some examples would be very helpful.

New Instruction No. 202
Direct and Indirect Evidence

    Evidence can come in many forms. It can be testimony about what someone saw or
heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s
    Some evidence proves a fact directly, such as testimony of a witness who saw a jet
plane flying across the sky. Some evidence proves a fact indirectly, such as
testimony of a witness who saw only the white trail that jet planes often leave. This
indirect evidence is sometimes referred to as “circumstantial evidence.” In either
instance, the witness’s testimony is evidence that a jet plane flew across the sky.
    As far as the law is concerned, it makes no difference whether evidence is direct or
indirect. You may choose to believe or disbelieve either kind. Whether it is direct or
indirect, you should give every piece of evidence whatever weight you think it

BAJI 2.60. Burden of Proof and Preponderance of Evidence

Plaintiff is seeking damages based upon [a] claim[s] of _______ _______. Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:

[The essential elements of [each separate] [the] claim. The essential elements of [the] [each separate] claim [is] [are] set forth elsewhere in these instructions. In addition to these essential elements, plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the nature and extent of the [damages] [injuries] claimed to have been suffered, the elements of plaintiff's damage and the amount thereof.]

[_______________________________________________________________________________ _______________________________________________________________________________ ___________________________________________________ ________________________.]

The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:

___________________________________________________ ________________________.

"Preponderance of the evidence" means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.

You should consider all of the evidence bearing upon every issue regardless of who produced it.

Comment:  These are all very important points.  Who bears the burden of proof can be critical, and there is research suggesting that jurors often poorly understand or confuse standards like preponderance of the evidence and proof beyond a reasonable doubt.  The actual definition in BAJI 2.60 starts off pretty well by stating that the evidence must have more convincing force than the opposing evidence.  But the next sentence is pretty bad, especially the use of the word preponderate.  Here is the new version.  Note that is states the issue clearly--whether something is more likely than not, a phrase we encounter quite commonly. Using this formulation allows us to avoid the term preponderance entirely.  The instruction also does something that can sometimes be useful for jurors: it addresses a possible areas of confusion head-on by distinguishing this standard from the criminal standard:

New Instruction No. 200
Obligation to Prove—More Likely True Than Not True

    When I tell you that a party must prove something, I mean that the party must
persuade you, by the evidence presented in court, that what he or she is trying to
prove is more likely to be true than not true. This is sometimes referred to as “the
burden of proof.”
    After weighing all of the evidence, if you cannot decide whether a party has satisfied
the burden of proof, you must conclude that the party did not prove that fact. You
should consider all the evidence that applies to that fact, no matter which party
produced the evidence.
    In criminal trials, the prosecution must prove facts showing that the defendant is
guilty beyond a reasonable doubt. But in civil trials, such as this one, the party who
is required to prove a fact need only prove that the fact is more likely to be true than
not true.

BAJI 3.00. Negligence--Essential Elements

The plaintiff _______ [also] seeks to recover damages based upon a claim of negligence.
The essential elements of this claim are:
1. The defendant was negligent;
       2. Defendant's negligence was a cause of [injury] [damage] [loss] [or] [harm] to plaintiff.

Comment: After all these preliminary matters, we finally get to the elements of the cause of action.  The most basic cause of action is negligence, and the BAJI instruction states the basic elements understandably enough, it seems to me.  For purposes of comparison, here is the new version.  One small point is that the BAJI instruction seems to me to collapse what are really two elements: that the plaintiff was harmed and that the defendant caused that harm.  You will observe that these are indeed two elements in the new instruction:

New Instruction No. 400
Essential Factual Elements

    [Name of plaintiff] claims that [he/she] was harmed by [name of defendant]’s
negligence. To establish this claim, [name of plaintiff] must prove all of the following:
    1. That [name of defendant] was negligent;
    2. That [name of plaintiff] was harmed; and
    3. That [name of defendant]’s negligence was a substantial factor in causing [name
of plaintiff]’s harm.
    Just because [name of plaintiff] was harmed does not, by itself, mean that [name of
defendant] is legally responsible for the harm.

BAJI 3.76. Cause--Substantial Factor Test

The law defines cause in its own particular way. A cause of [injury] [damage] [loss] [or] [harm] is something that is a substantial factor in bringing about an [injury] [damage] [loss] [or] [harm].

Comment  There has been a huge amount of litigation in California (and other states) on the definition of causation in tort law.  California's Supreme Court finally adopted what is known as the substantial factor test.  If you go back to new instruction 400, directly above, you will see that the new instructions have incorporated this instruction directly into the general negligence standard, rather than saying that the defendant must have caused the harm in one instruction, and defining causation in a later instruction.  This strikes me as the sensible thing to do--the less cross-referencing, the better.

BAJI 5.50. Duty of Motorists and Pedestrians Using Public Highway

Every person using a public street or highway, whether as a pedestrian or as a driver of a vehicle, has a duty to exercise ordinary care at all times to avoid placing [himself] [or] [herself] or others in danger and to use like care to avoid an accident from which an injury might result.
[A "vehicle" is a device by which any person or property may be propelled, moved, or drawn upon a highway [, excepting a device moved exclusively by human power or used exclusively upon stationery rails or tracks].]
[A "pedestrian" is any person who is afoot or who is using a means of conveyance propelled by human power other than a bicycle.] [The word "pedestrian" also includes any person who is operating a self-propelled wheelchair, invalid tricycle, or motorized quadrangle and, by reason of physical disability, is otherwise unable to move about as a pedestrian, as earlier defined.]

Comment: Holy Toledo!  What in tarnation is an invalid tricycle or motorized quadrangle????  Moreover, afoot is a lovely term, but today is used mainly in a metaphoric sense (there was danger afoot).  And I imagine that most people would think that drawing upon a highway involves leaving behind graffiti, not pulling or towing something.  The new version follows. Notice that the committee seems to have decided that it is not necessary to define pedestrians.  One other important point is that the new instruction specifically ties this standard of care into the issue that the jury has to decide (see basic negligence instruction) by pointing out that breach of the standard is negligence.  The BAJI instruction does simply lays out the duty, but does not tell jurors that a breach of this duty is negligence, satisfying the first element in a cause of action for negligence.

New Instruction No. 700
Basic Standard of Care

A person must use reasonable care in driving a vehicle. Drivers must keep a lookout
for pedestrians, obstacles, and other vehicles. They must also control the speed and
movement of their vehicles. The failure to use reasonable care in driving a vehicle is
BAJI 5.51. Amount of Caution Required in Ordinary Care--Driver and Pedestrian

While it is the duty of both the driver of a motor vehicle and a pedestrian, using a public roadway, to exercise ordinary care, that duty does not necessarily require the same amount of caution from each. The driver of a motor vehicle, when ordinarily careful, will be alert to and conscious of the fact that in the driver's charge is a machine capable of causing serious consequences if the driver is negligent. Thus the driver's caution must be adequate to that responsibility as related to all the surrounding  circumstances. A pedestrian, on the other hand, has only his or her own physical body to manage to set in motion a cause of injury. Usually that fact limits the capacity of a pedestrian to cause injury, as compared with that of a vehicle driver. However, in exercising ordinary care, the pedestrian, too, will be alert to and conscious of the mechanical power acting on the public roadway, and of the possible serious consequences from any conflict between a pedestrian and such forces. The caution required of the pedestrian is measured by the danger or safety apparent to the pedestrian in the conditions at hand, or that would be apparent to a person of ordinary prudence in the same position.

Comment:  This instruction is an elaboration on or explanation of the general standard of care relating to motor vehicles.  I generally believe that it is a good idea for instructions to tell jurors why a particular rule applies.  Psychological studies have shown that people are more likely to comply with an order if they understand its purpose, as opposed to obeying what seem to be arbitrary commands.  Yet here the explanation for the rule does not seem all that important--anyone with any brains whatsoever understands that cars are potential weapons of mass destruction in a way that ordinary pedestrians are not.  Thus, this is an example where the language of the new instruction is much shorter than the old one:
New Instruction No. 710
Duties of Care for Pedestrians and Drivers

The duty to use reasonable care does not require the same amount of caution from
drivers and pedestrians. While both drivers and pedestrians must be aware that
motor vehicles can cause serious injuries, drivers must use more care than

Well,  that's enough for now.  The real question is what happens when these instructions are used.  I'll try to keep you updated.