Warning Defect: Origins, Policies, and Directions
On a spectrum from the polar extreme of generality to the opposite pole of specificity, “What should warnings say?” is near the extreme in its degree of generality. A question phrased this way invites a correspondingly generic response. Such a response is not very useful to the trial judge and lawyers who regularly must fashion clear explanations on the law of warning defect for layperson juries. As used here, this question is not intended as a signal inviting just any kind of response that might be acceptable under the mores of casual conversation. It is a more serious request for a very direct and substantive response. For clarification, consider these two further variations upon it:
What does the law say warnings should say?
What legal consequences follow if warnings do not say what the law says they should say?
These questions are illustrative of the issues raised in the legal consideration of warnings and their sufficiency. The aim of this Article is to provide legal professionals with guidance on how to frame these issues.