Hiers v. Lemley’s Empirical Analysis

Citation profile

1 federal appellate · 28 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 31 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[T]he affirmative converse instruction is not favored for a number of reasons. Such instruction, like the true converse, is an accessory and unnecessary to the instruction package. An affirmative converse instruction tends to resemble a prohibited ‘sole cause” instruction. The affirmative converse instruction is often merely a resubmission of the issues found in the verdict director. It requires evidentiary support to justify its submission. In addition, it has the propensity to violate the general premise of the approved instruction format by including unnecessary evidentiary details instead of ultimate issues. Rule 70.02(a). These potential problems have led some experts to squarely advise, "Do not use the affirmative converse instruction.” [E.] Thomas, [Converse Instructions Under MAI,] 42 Mo.L.Rev. [175,] 206 [(1977)].””

   1 later decision quote this exact passage
   e.g. Walton v. City of Seneca

2. “There are two fundamental types of authorized converse instructions: the true converse and the affirmative converse. The true converse begins, ‘Your verdict must be for the defendant unless you believe ...” and the remainder of the instruction is to be taken from the verdict director. The form book for the language of the converse instruction, other than the introductory phrase, is the verdict director itself. MAI 33.01. In contrast, an affirmative converse presents a hypothetical ultimate issue which, if true, would defeat plaintiffs claim. The affirmative converse instruction begins, ‘Your verdict must be for the defendant if you believe ...” and it requires independent evidence for support. MAI 33.01.”

   1 later decision quote this exact passage
   e.g. Smith v. Burton

3. “A circumspect defense lawyer should be hesitant in giving an affirmative converse instruction. We reiterate that such an instruction should only be given if supported by the evidence. The instruction is suspect unless the converse submits a contested ultimate issue that was omitted from or assumed as true in the verdict director. As previously noted, the judicial landscape is littered with reversals and retrials in cases where affirmative converse instructions were given.”

   1 later decision quote this exact passage
   e.g. Maxwell v. City of Hayti