By Cory Bilton.

The October 2014 edition of Bicycling Magazine lists Washington, DC, Arlington, and Alexandria among America’s Best Bike Cities. DC ranks the best of the three in position #5; Arlington comes in at #19; and Alexandria falls at #31. This is a sign of how the entire metropolitan area is embracing bicycling as a mode of transportation, a good source of exercise, and a method of alleviating traffic congestion. But if you happen to be unfortunate enough to be struck by a vehicle while riding your bicycle, one thing you won’t find in the metropolitan DC area is any model jury instructions for bicyclists. This puts bicyclists at a significant disadvantage at trial.

First, some background for non-lawyer readers. One important part of any jury trial happens when the judge instructs the jurors about the relevant law for the case in front of them. Judges do this because jurors need to know the legal rules before they can figure out how to decide the outcome of a case. The judge reads these instructions to the jurors after all the evidence has been presented and just before the jurors retire to deliberate. While it may seem like the judge just explains the law, the judge is actually reading previously prepared juror instructions submitted to the judge by the lawyers. If there is any disagreement among the parties on an instruction, the judge resolves the dispute ahead of time out of the presence of the jury. Most of the juror instructions read by the judge come from a book of model jury instructions that is printed for each jurisdiction. While the lawyers are not limited to using instructions from the book, picking instructions from the book is a convenient and practical way to find clear statements of the law.

Surprisingly, none of the model jury instruction books in Virginia, Maryland, or Washington, DC mention bicyclists at all. Virginia’s Model Jury Instructions, published by LexisNexis, contains 49 chapters total, 8 of which cover instructions for motor vehicles, and one of which covers pedestrian/motor vehicle instructions. Bicycles are never mentioned. Likewise, Maryland’s Civil Pattern Jury Instructions is composed of 30 different chapters, one of which covers motor vehicles and another that covers pedestrians. Cyclists don’t enter the picture anywhere. Lastly, DC’s Standardized Civil Jury Instructions has 25 chapters and a table of contents that spans 11 pages, but doesn’t contain a single instruction dedicated to bicyclists. Each of these volumes contain instructions with great detail covering points of law both broad and narrow, but without any custom tailored instructions to guide a juror on how to decide a case involving a bicyclist.

The effect of the lack of model jury instructions for bicyclists is that lawyers that represent cyclists must craft and propose specific jury instructions relating to bicyclists. These proposed instructions are met with skepticism by both opposing counsel and judges, because they don’t come from the book of model jury instructions. Even adapting existing jury instructions by substituting the word “bicyclist” in place of “motor vehicle” is sometimes viewed as unnecessarily confusing and duplicative to local judges. (This doesn’t seem confusing to me: bicyclists riding on the roadway have all the rights and duties of a motor vehicle.) It ends up being something of a catch 22: there are no model jury instructions for bicyclists, but any proposed bicyclist instructions are viewed with suspicion. A default rule, for example something like “a bicyclist has a duty of ordinary care,” is often so devoid of detail as to be more a hindrance than a help to the jury.

If you think the lack of model jury instructions for bicyclists makes no difference, you’d be wrong. Without clear statements of the law, jurors have a very difficult time reaching a fair outcome. Without a clear guide as to how to weigh the facts of a case, jurors spend unnecessary energy arguing over the law during deliberations. I’ve seen this happen. This leads to a breakdown in the administration of justice that should concern us all. If communities like Washington, DC, Arlington, and Alexandria really want to embrace bicycling, they need to ensure that bicyclists’ legal rights aren’t forgotten or ignored inside the courtroom.

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