Case 1:20-cv-00393-LO-TCB Document 1204-1 Filed 04/28/22 Page 1 of 122 PageID# 31729
`Case 1:20-cv-00393-LO-TCB Document 1204-1 Filed 04/28/22 Page 1 of 122 PagelD# 31729
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`EXHIBIT 1
`EXHIBIT 1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`RAI STRATEGIC HOLDINGS, INC. AND R.J.
`REYNOLDS VAPOR COMPANY
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`Plaintiffs and
`Counterclaim Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
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`Defendants and
`Counterclaim Plaintiffs.
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`Case No. 1:20-cv-00393-LO-TCB
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`JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS
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`Plaintiffs Altria Client Services LLC (“Altria”), Philip Morris USA Inc. (“PM USA”), and
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`Philip Morris Products S.A. (“PMP”) (collectively, “PMI/Altria”) and Defendants RAI Strategic
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`Holdings, Inc. and R.J. Reynolds Vapor Company (collectively, “Reynolds”) respectfully submit
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`the following proposed preliminary jury instructions. For each disputed instruction, the parties
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`have included (i) one proposed instruction with a notation of the parties’ point(s) of disagreement
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`for that instruction, or (ii) the parties’ competing proposed instructions. The language proposed
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`by PMI/Altria is underlined, and the language proposed by Reynolds is italicized.
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`The parties reserve the right to amend, supplement, and/or modify these proposed
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`preliminary jury instructions as the case proceeds, including in light of the Court’s orders on
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`pending and future motions and as the case proceeds through trial. The parties do not concede, by
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`submitting the proposed instructions, that the adverse party has met its evidentiary burdens, if any,
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`with respect to any issue to which the proposed instructions pertain.
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`PROPOSED PRELIMINARY JURY INSTRUCTIONS .............................................................. 1
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`TABLE OF CONTENTS
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`9.
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`10.
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`11.
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`12.
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`13.
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`14.
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`15.
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`16.
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`17.
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`18.
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`19.
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`20.
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`21.
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`22.
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`23.
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`Opening Instructions – AGREED ......................................................................... 1
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`Nature of the Action and the Parties – AGREED IN PART ................................. 2
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`All Persons Equal Before the Law – AGREED ..................................................... 3
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`United States Patents – AGREED ......................................................................... 4
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`Federal Judicial Center Video – AGREED ........................................................... 6
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`Patent Litigation – AGREED IN PART ................................................................ 7
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`Patent Claims – AGREED ..................................................................................... 9
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`The Asserted Claims – AGREED ........................................................................ 10
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`Contentions of the Parties – AGREED IN PART ............................................... 11
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`Trial Procedure – AGREED IN PART ................................................................ 15
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`Bench Conferences – AGREED .......................................................................... 18
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`Conduct of the Jury – AGREED .......................................................................... 19
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`Note-Taking by Jurors – AGREED ..................................................................... 21
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`Evidence in the Case – AGREED IN PART ....................................................... 23
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`Consideration of the Evidence – Corporate Party’s Agents and Employees
`– AGREED .......................................................................................................... 25
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`Distinction between Fact and Expert Testimony – AGREED IN PART ............ 26
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`Credibility of the Witness – Discrepancies in Testimony – AGREED ............... 28
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`The Court May Ask Questions – AGREED ........................................................ 30
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`Questions By Jurors – DISPUTED [REYNOLDS PROPOSAL ONLY] ........... 31
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`Demonstrative Exhibits – AGREED ................................................................... 32
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`Use of Depositions as Evidence - AGREED ....................................................... 33
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`Use of Requests for Admission – AGREED ....................................................... 34
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`Glossary of Patent Terms – AGREED AS TO INSTRUCTION;
`GLOSSARY ENTRIES AGREED IN PART ..................................................... 35
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`APPENDIX 1 – AGREED IN PART .......................................................................................... 36
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`PROPOSED PRELIMINARY JURY INSTRUCTIONS
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`1.
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`Opening Instructions – AGREED
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`Members of the jury:
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`We are about to begin the trial of the case you heard about during the jury selection. Before
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`the trial begins, I am going to give you instructions that will help you to understand what will be
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`presented to you and how you should conduct yourself during the trial.
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`During the trial you will hear me use a few terms that you may not have heard before. Let
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`me briefly explain some of the most common to you. The party who sues is called the plaintiff.
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`In this action, there are three plaintiffs: (1) Altria Client Services LLC, which may be referred to
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`as “ACS” or “Altria,” (2) Philip Morris USA Inc., which is usually referred to as “PM USA,” and
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`(3) Philip Morris Products S.A., which is usually referred to as “PMP.” The party being sued is
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`called the defendant. In this action, the Defendant is R.J. Reynolds Vapor Company, which is
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`usually referred to as “RJRV” or “Reynolds”
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`You will sometimes hear me refer to “counsel.” “Counsel” is another way of saying
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`“lawyer” or “attorney.” I will sometimes refer to myself as the “Court.”
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`Authorities:
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`TecSec, Inc. v. Adobe Inc., No. 10-cv-115, Dkt. 1322 at 3 (E.D. Va. Dec. 9, 2018) (modified to fit
`the facts of the case); O’Malley, Federal Jury Practice and Instructions (6th ed. 2006) § 101.01.
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`1
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`2.
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`Nature of the Action and the Parties – AGREED IN PART
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`This is a patent case. The patents involved in this case are generally directed to e-cigarette
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`products.
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`During the trial, the parties will offer evidence and testimony to help familiarize you with
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`this technology. For your convenience, the parties have also prepared a Glossary of some of the
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`technical terms to which they may refer during the trial, which will be distributed to you.
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`PMI/Altria are asserting five patents in this case, which are identified by a seven- or eight-
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`digit number or the last three digits, for shorthand. The patents are: United States Patent No.
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`10,420,374 or the ’374 Patent (asserted by ACS); United States Patent No. 6,803,545 or the ’545
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`Patent (asserted by PM USA); United States Patent No. 9,814,265 or the ’265 Patent (asserted by
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`PMP); United States Patent No. 10,104,911 or the ’911 Patent (asserted by PMP); and United
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`States Patent No. 10,555,556 or the ’556 Patent (asserted by PMP). The patents may also be
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`referred to collectively as the “asserted patents,” or the “patents-in-suit.”
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`Reynolds is the other party in this case. [Reynolds also owns patents, but they are not at
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`issue in this case.]
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`Authorities:
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`TecSec, Inc. v. Adobe Inc., No. 10-cv-115, Dkt. 1322 at 4 (E.D. Va. Dec. 9, 2018) (modified to fit
`the facts of the case); 2019 Model Patent Jury Instructions of the American Intellectual Property
`Law Association (2019) (“AIPLA Model Instruction(s)”), Part II(1.) Preliminary Jury Instructions
`(modified to fit the facts of this case); 2020 Federal Circuit Bar Association Model Patent Jury
`Instructions (“FCBA Model Instruction(s)”), No. A.2.
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`3.
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`All Persons Equal Before the Law – AGREED
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`This case should be considered and decided by you as an action between persons of equal
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`standing in the community, of equal worth, and holding the same or similar stations of life. A
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`corporation is entitled to the same fair trial at your hands as a private individual regardless of its
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`size, wealth, or place of incorporation. All persons, including corporations, partnerships,
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`unincorporated associations, and other organizations, stand equal before the law, and are to be
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`dealt with as equals in a court of justice.
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`Authorities:
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`TecSec, Inc. v. Adobe, Inc., No. 10-cv-115, Dkt. 1351 at 3 (E.D. Va. Dec. 19, 2018); Samsung
`Elecs. Co., Ltd. v. NVIDIA Corp., No. 14-cv-757, Dkt. 791 (E.D. Va. Feb. 5, 2016); O’Malley,
`Federal Jury Practice and Instructions (6th ed. 2015), § 103.11.
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`4.
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`United States Patents – AGREED
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`Patents are granted by the United States Patent and Trademark Office, which is sometimes
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`called the “Patent Office,” “PTO,” or “USPTO.” A patent gives the owner the right to exclude
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`others from making, using, offering to sell, or selling the claimed invention within the United
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`States or importing it into the United States. During the trial, the parties may offer testimony to
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`familiarize you with how one obtains a patent from the PTO, but I will give you a general
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`background here.
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`To obtain a patent, an application for a patent must be filed with the PTO by an applicant.
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`The application includes a specification, which should have a written description of the invention,
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`how it works, and how to make and use it so as to enable others skilled in the art to do so. The
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`specification concludes with one or more numbered sentences or paragraphs. These are called the
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`“claims” of the patent. The purpose of the claims is to particularly point out what the applicant
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`regards as the claimed invention and to define the scope of the patent owner’s exclusive rights.
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`After an application for a patent is filed with the PTO, the application is reviewed by a
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`trained PTO Patent Examiner. The Patent Examiner reviews (or examines) the patent application
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`to determine whether the claims are patentable and whether the specification adequately describes
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`the claimed invention. In examining a patent application, the Patent Examiner searches records
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`available to the PTO for what is referred to as “prior art,” and he or she also reviews prior art
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`submitted by the applicant.
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`When the parties are done presenting evidence, I will give you more specific instructions
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`as to what constitutes prior art in this case. Generally, prior art is previously existing technical
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`information and knowledge against which the Patent Examiners determine whether or not the
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`claims in the application are patentable. The Patent Examiner considers, among other things,
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`whether each claim defines an invention that is new, useful, and not obvious in view of this prior
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`art. In addition, the Patent Examiner may consider whether the claims are directed to subject
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`matter that is not eligible for patenting, such as natural phenomena, laws of nature, and abstract
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`ideas. The Patent Examiner also may consider whether the claims are not indefinite and are
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`adequately enabled and described by the application’s specification.
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`Following the prior art search and examination of the application, the Patent Examiner
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`advises the applicant in writing what the Patent Examiner has found and whether any claim is
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`patentable (in other words, “allowed”). This writing from the Patent Examiner is called an “Office
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`Action.” More often than not, the initial Office Action by the Patent Examiner rejects the claims.
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`The applicant then responds to the Office Action and sometimes cancels or changes the claims or
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`submits new claims or makes arguments against a rejection. This process may go back and forth
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`between the Patent Examiner and the applicant for several months or even years until the Patent
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`Examiner is satisfied that the application and claims are patentable. Upon payment of an issue fee
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`by the applicant, the PTO then “issues” or “grants” a patent with the allowed claims.
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`The collection of papers generated by the Patent Examiner and the applicant during this
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`time of corresponding back and forth is called the “prosecution history.” You may also hear the
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`“prosecution history” referred to as the “file history” or the “file wrapper.” In this case, it is
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`ultimately for you to decide, based on my instructions to you, whether Reynolds has shown that
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`the patent claims are invalid.
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`Authorities:
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`TecSec, Inc. v. Adobe Inc., No. 10-cv-115, Dkt. 1322 at 6-7 (E.D. Va. Dec. 9, 2018); 2019 Model
`Patent Jury Instructions of the American Intellectual Property Law Association (2019) (“AIPLA
`Model Instruction(s)”), Part II.1.1. Preliminary Jury Instructions (modified to fit the facts of this
`case).
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`5.
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`Federal Judicial Center Video – AGREED
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`Before summarizing the positions of the parties and the issues involved in the dispute, at
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`this time, we are going to show a video that will provide background information to help you
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`understand what patents are, why they are needed, the role of the United States Patent Office, and
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`why disputes over patents arise. This video was prepared by the Federal Judicial Center, not the
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`parties in this case, to help introduce you to the patent system. During the video, reference will be
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`made to a sample patent. This is not one of the patents at issue in this case. A copy of this sample
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`patent has been given to you so that you may follow along with the video.
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`—The video will be played—
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`
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`Authorities:
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`The Sedona Conference, Case Management Issues from the Judicial Perspective (WG10
`Commentary on Patent Litigation Best Practices), 2014 at 24-25 (“Best Practice 42 – The district
`court should provide preliminary jury instructions and consider playing the video ‘The Patent
`Process: An Overview for Jurors.’”); Optis Wireless Tech., LLC v. Huawei Techs. Co. Ltd., No.
`17-cv-00123, Dkt. 235 (E.D. Tex. 2018) (proposed instructions); Baltimore Aircoil Co., Inc. v.
`SPX Cooling Tech., Inc., No. 13-cv-02053 (D. Md. 2016) (Dkt. 253) (proposed instructions);
`Bridgestone Americas Tire Operations, LLC v. Schrader-Bridgeport, Inc. d/b/a Schrader Int’l,
`Inc., et al., No. 13-cv-763, Dkt. 248 (D. Del. 2015) (Preliminary Jury Instruction 7).
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`6.
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`Patent Litigation – AGREED IN PART
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`Someone is said to be infringing a claim of a patent when they, without permission from
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`the patent owner, import, make, use, offer to sell, or sell the patented invention or a product made
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`by a patented process, as defined by the claims, within the United States before the term of the
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`patent expires. A patent owner who believes someone is infringing the exclusive rights of a patent
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`may bring a lawsuit to attempt to stop the alleged infringing acts or to recover damages, which
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`generally means money paid by the infringer to the patent owner to compensate for the harm
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`caused by the infringement. The patent owner must prove infringement of the claims of the patent
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`by a preponderance of the evidence.
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`This means the patent owner must prove that it is more likely than not that its patent was
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`infringed. The patent owner must also prove the amount of damages the patent owner is entitled
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`to receive by a preponderance of the evidence. This means the patent owner must prove that, if
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`there was infringement, there is an amount of damages that it is more likely than not it is entitled
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`receive.
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`Someone accused of infringing a patent may deny infringement and/or prove that the
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`asserted claims of the patent are invalid. [A patent is presumed to be valid. In other words, it is
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`presumed to have been properly granted by the PTO.] To prove that any claim is invalid, Reynolds
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`must persuade you by clear and convincing evidence that the claim is invalid. [This means that
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`the evidence leaves you with a clear conviction that the claim is invalid.] [This means that the
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`challenger must show that it is highly probable that the claim is invalid.] I will discuss more on
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`this topic later.
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`I will now briefly explain the parties’ basic contentions in this case in more detail.
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`Authorities:
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`TecSec, Inc. v. Adobe Inc., No. 10-cv-115, Dkt. 1322 at 8 (E.D. Va. Dec. 9, 2018) (modified to fit
`the facts of the case); 2020 Federal Circuit Bar Association Model Patent Jury Instructions
`(“FCBA Model Instruction(s)”), No. A.4.
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`7.
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`Patent Claims – AGREED
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`Before you can decide many of the issues in this case, you will need to understand the role
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`of patent “claims.” The patent claims are the numbered sentences at the end of each patent. The
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`claims are important because it is the words of the claims that define what a patent covers. The
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`figures and text in the rest of the patent provide a description and/or examples of the invention and
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`provide a context for the claims, but it is the claims that define the breadth of the patent’s coverage.
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`Therefore, what a patent covers depends, in turn, on what each of its claims covers.
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`To know what a claim covers, a claim sets forth, in words, a set of requirements. Each
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`claim sets forth its requirements in a single sentence. The requirements of a claim are often
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`referred to as “claim elements” or “claim limitations.” The coverage of a patent is assessed claim-
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`by-claim. When a thing (such as a product or a process) meets all of the requirements of a claim,
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`the claim is said to “cover” that thing, and that thing is said to “fall” within the scope of that claim.
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`In other words, a claim covers a product or process where each of the claim elements or limitations
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`is present in that product or process.
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`You will first need to understand what each claim covers in order to decide whether or not
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`there is infringement of the claim and to decide whether or not the claim is invalid. The first step
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`is to understand the meaning of the words used in the patent claim.
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`In this case, I have determined that all of the claim terms should be given their plain and
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`ordinary meaning.
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`Authorities:
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`Federal Circuit Bar Association Model Patent Jury Instructions, § B.2, 2.1 (2020) (modified to fit
`the facts of this case); Dkt. 360.
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`8.
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`The Asserted Claims – AGREED
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`The claims in dispute are claims 3-5, 8, 10, 16, 18, 20, and 24-25 of the ’374 Patent; claims
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`1 and 4 of the ’545 Patent; claims 1, 4, and 17 of the ’265 Patent; claims 2, 11, and 12 of the ’911
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`Patent; and claim 4 of the ’556 Patent. For convenience, these patent claims may collectively be
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`referred to as “the asserted claims.”
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`
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`Authorities:
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`TecSec, Inc. v. Adobe Inc., No. 1:10-cv-115, Dkt. 1322 at 8 (E.D. Va. Dec. 9, 2018) (modified to
`fit the facts of the case, specifically that there are no method claims asserted in this case).
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`9.
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` Contentions of the Parties – AGREED IN PART
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`PMI/Altria contend that Reynolds infringed the asserted claims of the five asserted patents
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`by making, using, offering to sell, or selling certain e-vapor products within the United States or
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`importing one or more of those products into the United States. These allegations are referred to
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`as “direct infringement.” The Reynolds products accused of infringing the asserted claims of at
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`least one of the asserted patents are the VUSE Solo, Vibe, Ciro, and Alto e-vapor products. These
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`products may be referred to as “the accused products.”
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`The accused products differ depending on the asserted patent. First, PMI/Altria contend
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`that all four accused products infringe the asserted claims of the ’374 ’545, and ’911 Patents.
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`Second, PMI/Altria contend that the Alto infringes the asserted claims of the ’265 Patent. Third,
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`PMI/Altria contend that the Vibe infringes the asserted claims of the ’556 Patent.
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`There are two ways in which a patent claim can be directly infringed by an accused
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`infringer. First, a claim can be literally infringed. Second, a claim can be infringed under what is
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`called the “doctrine of equivalents.” Furthermore, and with respect to indirect infringement, an
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`accused infringer can indirectly infringe patent claims by inducing another (for example, a
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`customer) to directly infringe a claim or contributing to another’s (for example, a customer) direct
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`infringement. I will explain each of these types of infringement to you shortly, but suffice to say
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`that regardless of the type and form of infringement for which you will be called upon to determine,
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`you must compare the accused products with the language of each patent claim that PMI/Altria
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`assert was infringed. [It will be my job to tell you what the language of the patent claims means
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`to aid your analysis, and you must follow my instructions as to the meaning of the claims. In other
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`words, you are not to define the patent claims yourselves. I have determined that the language of
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`the patent claims have their plain and ordinary meaning as understood by a person skilled in the
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`art at the time of the invention.]1
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`As to direct infringement, PMI/Altria must prove by a preponderance of the evidence that
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`an accused product contains each element of a patent claim for that claim to be literally infringed.
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`If any accused product does not contain one or more elements in that claim, then that accused
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`product does not literally infringe that claim. Since every patent claim is different, you must
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`separately determine literal infringement with respect to each individual patent claim. For that
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`same reason, you will likewise need to assess each accused product separately for each claim, as
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`any particular claim may pertain to one or more accused products.
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`A patent claim is infringed under the doctrine of equivalents only if there is an equivalent
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`component or components, in the accused product for each element of the patent claim that is not
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`literally present in accused products. In other words, PMI/Altria must prove that it is more likely
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`than not that the accused product contains the equivalent of each element of the claimed invention
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`that is not literally present in the accused product. An equivalent of an element is a component(s)
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`that is only insubstantially different from the claimed element. One way of showing that an
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`element is only insubstantially different is to show that it performs substantially the same function,
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`in substantially the same way, to achieve substantially the same result as would be achieved by the
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`element that is not literally present in the accused product.
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`As to indirect infringement, an asserted claim is infringed if Reynolds induced another to
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`directly infringe the claims or contributed to their infringement, whether literally or under the
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`doctrine of equivalents. To show that Reynolds induced infringement, PMI/Altria must prove by
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`
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`1 Reynolds’ proposal is conditional upon the Court adopting PMI/Altria’s proposal. Should the
`Court adopt PMI/Altria’s proposal, Reynolds requests the Court include the italicized language.
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`a preponderance of the evidence that (1) a third-party infringed the asserted claims; (2) Reynolds
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`took intentional, affirmative steps to encourage third-party infringement; (3) Reynolds knew of the
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`asserted patents at the time of the alleged acts; and (4) Reynolds knew or was willfully blind that
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`its acts would encourage third-party infringement.
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`To show that Reynolds contributed to another’s infringement, PMI/Altria must prove by a
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`preponderance of the evidence that (1) a third-party infringed the asserted claims; (2) Reynolds
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`sold, offered for sale, or imported within the United States a component of the infringing product
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`or an apparatus for use in the infringing method; (3) the component or apparatus is not a staple
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`article or commodity of commerce capable of substantial non-infringing use; (4) the component
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`or apparatus constitutes a material part of the claimed invention; and (5) Reynolds knew that the
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`component was especially made or adapted for use in an infringing product or method.
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`PMI/Altria contends that it is entitled to damages for Reynolds’ infringement. PMI/Altria
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`seeks damages in the form of a reasonable royalty. PMI/Altria has the burden to prove the amount
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`of damages by a preponderance of the evidence.
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`Reynolds denies that it infringes any of PMI/Altria’s patents. Reynolds contends that the
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`asserted claims of the ’911, ’265, and ’374 Patents are invalid because they were obvious.
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`Reynolds also contends that the asserted claims of the ’374 Patent are invalid because they are
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`anticipated by prior art. Reynolds contends that the asserted claims of the ’545 Patent are invalid
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`because the patent fails to contain an adequate written description of the claimed invention.
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`[Reynolds is not challenging the ’545 Patent as anticipated or obvious. Reynolds is not challenging
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`the validity of the ’556 Patent.] I will provide you with additional instructions as to the legal
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`requirements for these defenses at the conclusion of the evidence. Reynolds also disputes that
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`PMI/Altria is entitled to damages.
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`Invalidity of the asserted claims is a defense to infringement because, as a matter of law, a
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`party cannot infringe an invalid patent claim. [A patent is presumed to be valid. In other words,
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`it is presumed to have been properly granted by the PTO. But that presumption of validity can be
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`overcome if Reynolds presents clear and convincing evidence in court that proves the patent is
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`invalid.] [Therefore, even though the Patent Examiner allowed the claims of the asserted patents,
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`it is your job, as the jury, to decide whether the asserted claims are invalid. Reynolds must prove
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`that an asserted claim is invalid by clear and convincing evidence.]
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`Authorities:
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`TecSec, Inc. v. Adobe Inc., No. 10-cv-115, Dkt. 1322 at 11-13 (E.D. Va. Dec. 9, 2018) (modified
`to fit the facts of the case); 2019 AIPLA Model Patent Jury Instructions, §§ II.1.2 Patent Litigation,
`II.2 Contentions of the Parties (modified to fit the facts of this case), V3.10 Contributory
`Infringement (modified to fit the facts of this case); 2020 Federal Circuit Bar Association Model
`Patent Jury Instructions (“FCBA Model Instruction(s)”), No. A.2 and B.3 (modified to fit the facts
`of the case); Baltimore Aircoil Co., Inc. v. SPX Cooling Tech., Inc., No. 13-cv-2053, Dkt. 253 (D.
`Md. 2016) (proposed instructions); 35 U.S.C. § 282; Koito Mfg. Co. v. Turn-Key-Tech, LLC, 381
`F.3d 1142, 1153 (Fed. Cir. 2004); Zenith Elecs. Corp. v. PDI Commc’n. Sys., Inc., 522 F.3d 1348,
`1363 (Fed. Cir. 2008).
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`10.
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`Trial Procedure – AGREED IN PART
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`We are about to commence the opening statements in the case. Before we do that, I want
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`to explain the procedures that we will be following during the trial and the format of the trial. This
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`trial, like all jury trials, comes in six phases. We have completed the first phase, which was to
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`select you as jurors.
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`We are about to begin the second phase, the opening statements. The opening statements
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`of the lawyers are statements about what each side expects the evidence to show. The opening
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`statements are not evidence for you to consider in your deliberations. You must make your
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`decision based on the evidence and not the lawyers’ statements and arguments.
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`In the third phase, the evidence will be presented to you. Witnesses will take the witness
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`stand and documents will be offered and admitted into evidence. PMI/Altria will go first in calling
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`witnesses to the witness stand in support of its claims for infringement, damages, and willful
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`infringement. These witnesses will be questioned by PMI/Altria’s lawyers in what is called direct
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`examination. After the direct examination of a witness is completed, Reynolds has an opportunity
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`to cross-examine the witness. After PMI/Altria have presented their case-in-chief, Reynolds will
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`present its evidence that the asserted claims of the asserted patents, except for the ’556 Patent, are
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`invalid. Reynolds will also present evidence defending against PMI/Altria’s claims of
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`infringement, damages, and willful infringement. Reynolds will call its witnesses, who will also
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`be examined and cross-examined. After Reynolds presents its case, PMI/Altria may put on
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`additional evidence responding to Reynolds’ evidence; this is referred to as “rebuttal” evidence.
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`After PMI/Altria presents any rebuttal evidence, Reynolds may put on additional evidence of
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`invalidity responding to PMI/Altria’s rebuttal; this is referred to as “surrebuttal” evidence.
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`The parties may present the testimony of a witness by having the individual testify live for
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`you, by reading from their deposition transcript, or by playing a videotape of the witness’s
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`deposition testimony. All three are acceptable forms of testimony, unless I instruct you otherwise.
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`A deposition is the sworn testimony of a witness taken before trial and is entitled to the same
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`consideration as if the witness had testified at trial.
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`From time-to-time during the trial, I may make rulings on objections or motions made by
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`the lawyers. It is a lawyer’s duty to object when the other side offers testimony or other evidence
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`the lawyer believes is not admissible. You should not be biased or partial against a lawyer or the
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`lawyer’s client because the lawyer has made objections. When I “sustain” an objection, I am
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`excluding that evidence or testimony from this trial. When I “overrule” an objection, I am
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`permitting that evidence or testimony to be admitted. If I sustain or uphold an objection to a
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`question that goes unanswered by the witness, you should not draw any inferences or conclusions
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`from the question. You should not infer or conclude from any ruling or other comment I may
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`make that I have any opinions on the merits of the case favoring one side or the other. I do not
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`favor one side or the other.
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`The evidence often is introduced bit by bit, meaning that all of the evidence relating to an
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`issue may not be presented all at one time but, rather, may be presented at different times during
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`the trial. You need to keep an open mind as the evidence comes in. You are to wait until all the
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`evidence comes in before you make any decisions. In other words, keep an open mind throughout
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`the entire trial.
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`In the fourth phase, the lawyers will again have an opportunity to talk to you in what is
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`called “closing arguments.” As with the opening statements, what the lawyers say in the closing
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`arguments is not evidence for you to consider in your deliberations.
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`In the fifth phase, I will read you the final jury instructions. I will instruct you on the law
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`that you must apply in this case. I have already explained to you a