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     Jury instructions are too difficult and are thus unintelligible to a large portion of jurors. They are poorly worded, and their meaning is arcane. Yet, there is no reason they easily cannot be simplified, and there is no justification for not doing so. It is my opinion that they should be rewritten to take into account the average literacy level of the Arkansas adult population, as well as its lack of familiarity with legalese. This should increase the possibility that a larger percentage of a jury will actually understand the law it is charged with applying.
     It cannot seriously be gainsaid that jurors, in order to validly apply the law to the evidence of a case before them, need to understand the law, which is conveyed through the instructions given by the judge. No one disputes the importance of intelligent deliberation by jurors, but if even some jurors do not comprehend the instructions, intelligent deliberation by the entire jury is impossible. Lack of jury understanding raises suspicion about the fairness of trials and calls into question the whole jury system and its basic premise-that laypersons, peers of those before them, will thoughtfully and dispassionately apply the law to resolve disputes in favor of the deserving party.
     Other institutions concern themselves with the readability of documents meant to be read and understood by the general public-for instance, hospitals and the military. The Centers for Disease Control (CDC) publishes information for the medical community aimed at improving the readability of materials used in conducting human subject research.¹ The Air Force takes pains to make its technical instruction manuals understandable to airmen.²
     Many experts suggest that writings designed for public consumption be pitched to a 10th-grade level; others argue that 6th grade is even better.³ The desired norm appears to be an 8th- to 10th-grade level.⁴ Drafters of jury instructions, however, have paid scant attention to readability, being more concerned with the instructions' accuracy and comprehensiveness. Both lawyers and judges want to ensure that an instruction accurately and fully explains the legal proposition it sets forth and thus avoid reversal by an appellate court. Once an instruction has the appellate imprimatur of approval, it becomes gospel and subject to continued use without the slightest change, not to mention simplification. As a result, the instructions end up being written on a difficulty level equal to the Harvard Business Review-when they should be on a par with Sports Illustrated. No wonder they exceed the grasp of many, if not most, jurors.
     In search of objective confirmation of my hunch that jury instructions are too difficult, I applied several widely accepted readability formulas to Arkansas' and the Eighth Circuit's model jury instructions. These included the Fry graph, developed by Edward Fry when he was affiliated with the Rutgers University Reading Center.⁵ Other formulas consulted were SMOG, FOG, Flesch, Flesch-Kincaid and Linsear Write.⁶ SMOG, which stands for "simple measure of gobbledygook," is used by the CDC among other institutions. Harold McGraw, an educator with the Baltimore County, Maryland schools, developed it. FOG is the brainchild of Robert Gunning, who conceived this index to take the "fog" out of writing. Linsear Write is used by the Air Force. Rudolf Flesch developed his formula in the 1940s and received a Ph.D at Columbia University for it.⁷ The Flesch­Kincaid test is offered by Microsoft Word as a tool for users.
     These formulas correlate the writing's degree of difficulty with grade level. Mainly, they rely on ratios of words per sentence, sentences per paragraph and multi-syllabic words per sentence. Flesch claims that his was the first formula to rely on sentence and word length and is based on how the human mind works. According to him, the longer the word and the sentence, the more mental work is required of readers because longer words and sentences are more likely to be complex, to use suffixes and prefixes, and to contain more prepositional phrases and subordinate clauses.⁸
     After calculating the reading level of the jury instructions, I researched literacy profiles for Arkansas and the nation and compared these literacy levels with the grade level of the instructions. I found my suspicion confirmed: Jury instructions were written above the reading capability of most Arkansans. The formulas I used all show that the level for Arkansas' and the Eighth Circuit's jury instructions hovers around the 12th grade. In actuality, I believe this underestimates their difficulty because mere syllabic, word and sentence counts do not address the instructions' specialized subject matter. Lawyers study three years beyond college to master the concepts and terminology we expect ordinary citizens to grasp and apply virtually instantaneously. The unfamiliarity of the general public with legal concepts makes comprehending the ideas embodied in the instructions even more elusive.
     Adult literacy estimates for the United States, based on the 1990 census, show that 21 percent of the population have basic or "level one" reading and writing skills. Twenty-six percent possess "level two" skills.⁹ These levels are prose levels. "Prose level one" requires the reader to locate and match a single piece of information that is identical to, or nearly identical to, the information given in the text. "Prose level two" requires the reader to locate one or more pieces of information from the text and to compare and contrast information. "Prose level three" requires readers to search the text to match information and make low-level inferences. "Prose level four/five" measures how well readers perform multiple-feature matching, use specialized knowledge, and make text-based inferences from more abstract text sources.
      While literacy statistics for Arkansas have not been compiled, census information concerning grade-level attainment by Arkansas adults indicates that literacy estimates for Arkansas adults would not be higher and, in fact, may be worse than the national average.¹⁰ Approximately 14 percent of Arkansans have less than a 9th-grade education; 19 percent have between a 9th- and 12th-grade education; 33 percent have a high school diploma; and 19 percent have some college education, but no degree.¹¹ If more than "level two" skills are necessary to understand and apply the pattern jury instructions, then a majority of Arkansans, because they perform at "level one" or "level two," do not have these skills. If a 12th-grade education is needed to understand and apply them, then the 33 percent who have a 12th- grade education or less do not have necessary skills.
     Asking jurors is not a sufficient means by which to determine whether they understand the instructions because the answers are apt to be misleading. Surveys of jurors reveal that their self-assessments are unreliable: While jurors profess to comprehend instructions, further questioning reveals that they do not.¹² (There probably are two reasons for this: People dislike admitting that they are not skilled in their native tongue, and they may not realize that they are misinterpreting the meaning of the words used. In other words, they think they understand when they do not.) This conclusion was reinforced by candid comments I elicited from the former jurors I interviewed. For instance, jurors apparently disregard the definition of "proximate cause" and interpret it to mean "approximate cause." This should not be surprising. Those of us who remember our early law school days would do well to reflect on the time we spent mastering legal vocabulary and the concepts different words signified. To expect a layperson, even an educated one, to grasp sophisticated legal doctrine as reflected in terms like "proximate cause," "negligence" or "willful and wanton" (I could go on and on), especially after only one reading of the instructions, is unrealistic.¹³
     I spoke with the Honorable David B. Bogard, Pulaski County Circuit Judge, who, as a member of the Arkansas Supreme Court Committee on Jury Instructions, participated in drafting the Arkansas Model Jury Instructions, Civil, and the Honorable James M. Moody, District Judge of the Eastern District of Arkansas, and a member of the Committee on Model Jury Instructions for the Eighth Circuit. They express doubts about juror comprehension. Both judges have many years of experience as trial lawyers and jurists. Judge Moody voices concern that a portion of the jurors do not understand the instructions, and that because of this, those jurors who do understand play a disproportionately dominant role in deliberations. This, he does not believe, is a desirable outcome, since all jurors should participate equally in the process. Judge Bogard states flatly that he does not think jurors understand certain instructions, such as the Arkansas Model Instruction on comparative negligence. He acknowledges that scant attention is paid to juror comprehension. Committee members, who are judges and lawyers, are preoccupied solely with authoring correct and comprehensive statements of the law.
     One of the foundations of our legal system, and a cherished notion, is that of juries deciding the fate of litigants based on the law as applied to the evidence. The specter of juries finding defendants guilty of crimes, defendants liable for sums of money under civil law, or plaintiffs denied recovery based on a faulty comprehension of the law is deeply disconcerting-as is the idea that a portion of every jury does not participate in deliberation because they do not understand the instructions. Others have commented on this problem in law reviews, bar association journals and elsewhere. There have been full-scale research projects on the subject, complete with real and mock jurors, questionnaires, videos and plenty of analysis. These studies and writings uniformly conclude that (1) juries' understanding leaves much to be desired, and (2) jury instructions ought to be simplified.¹⁴ As a result, in at least some quarters, a plain language movement has developed; however, this effort primarily focuses on criminal jury instructions.¹⁵ This movement has not come to Arkansas, or apparently to the Eighth Circuit.
     A remedy to the problem in Arkansas, however, is not fancy, difficult nor out of reach. First, the Eighth Circuit and Arkansas Supreme Courts need to consider readability when drafting instructions. Pattern jury instructions, and indeed all instructions given to the jury, should be rewritten to a lower grade level. Presently, the committees appointed by the courts to develop jury instructions are entirely comprised of lawyers and doctors. Certainly, one way to improve readability would be to include laypersons and reading specialists on these committees. The role of the lawyers and judges would be to ensure that the instructions correctly express the law, the role of the lay persons would be to ensure that non-lawyers can understand them, and the role of the reading specialist would be to assist both groups so that the instructions are accurate and comprehensive, yet readable for as many jurors as possible.
(This article has a Flesch-Kincaid readability grade level of 12.)

ENDNOTES
     1   D. Snider, Jr. M.D., M.P.H., CDC, Associate Director for           Science "Human Subjects Research," http://www.cdc.gov/
          od/ads/smog.htm.
     2   "Readability Helps the Level," http://www.csun.edu/            vcecn006/read1.htm.
     3   Id.
     4   Id.
     5   K.Schock, "Kathy Schock's Guide for Educators,           http://school.discovery.com/schockguide/fry/fry.html, 1995-          2000; Fry, Edward, "Elementary Reading Instruction."  N.Y.           McGraw, 1977)
     6   "Is Your Consent Form Understandable to People Who Don't           Have a PhD from MIT?" http://www.med.mun.ca/
          hic/Readability.htm; Snider, supra note 2.
     7   R. Flesch, "How To Write Plain English,"           http://www.mang.Canterbury.ac.nz/courseinfo/AcademicWriting?           Flesch.htm.
     8   Id.
     9   National Center for Educational Statistics, U.S. Dept. of           Education, The Condition of Education, 1997.
   10  Adult literacy estimates for Arkansas prepared by Portland State           University based on 1990 census data assign 22% at Level 1           and 56% at Levels 1 or 2. Portland St. Univ. 1996.
   11  UALR, Institute for Economic Advancement, Arkansas State           Social Statistics, 6/04/01.
   12  American Inns of Court, Little Rock Chapter, Jury Questionnaire,           2002; B. Saxton, "How Well Do Jurors Understand Jury           Instructions? A Field Test Using Real Jurors and Real Trials in           Wyoming," Wyoming Water and Land Rev., 1998.
   13  This raises the question as to whether simplifying the
          instructions is solely a matter of changing the definitions of the           legal terms, or also of simplifying the terms themselves. For           instance, should the usual terms, such as "proximate cause" and           "willful and  wanton," be used with altered definitions, or should           these be discarded in favor of other, more familiar ones? I favor           the latter approach.
   14  B. Saxton, supra note 12; "Federal Judges Simplify Jury           Instructions," 68 A.B.A.J. 1066 (Sept. 1982); S. Burgess,           "Jurors Ignore, Misunderstand Instructions," 81 A.B.A.J. 30,           (May 1995); J. McElhaney, "When Jurors' Eyes Glaze Over,           They're Telling You Something," 81 A.B.A.J. 91, (November           1995); M. Higgins, Not So Plain English, 84 A.B.A.J., (June           1998).
   15  M. Higgins, supra note 14.