Mediation Message No. 8


While sound preparation by plaintiffs and defense lawyers for mediation, motions and trial has always included a review of the BAJI instructions for the elements of the causes of action to be litigated, the creation of the new Judicial Council of California Civil Jury Instructions (CACI) makes that review even more critical. These new instructions, which are not copyrighted, can be accessed on both LexisNexis and Westlaw, although the LexisNexis site is much easier to use.

CACI differs from BAJI in three substantial ways, besides simplifying the wording in the instructions. It includes several legal areas (as an example, the Cartwright Act) that were not covered by BAJI. Next, CACI provides verdict forms for all of the potential theories of liability, making it much easier to identify the legal elements in question which need to be proved or defended against. Third, CACI has updated the law supporting each of the instructions, thereby providing a quick reference tool for those who may wish to supplement their research on a particular subject.

These changes should be very helpful to lawyers as they prepare for mediation because that process will frequently include a discussion by the mediator of both the evidence supporting or controverting the elements of the causes of action in question and the law regarding those same theories.

Copyright, Michael D. Marcus, November 2003

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