The jury instructions and verdict form are often treated as an afterthought relegated to an associate just before trial when lead counsel is focused on opening statements and presenting evidence. Don’t let this happen. The importance of having clear jury instructions, objections, and rulings thereon cannot be overstated. Jury instructions are often reviewed de novo, because they involve questions of law, so it is vital for counsel to preserve all potential issues related to the instructions and verdict form.
The relevant jurisdiction’s standard or pattern instructions are a good place to begin when drafting jury instructions; trial courts will usually use these instructions unless it is shown that they do not accurately describe the current state of the law or are otherwise insufficient. Where standard instructions fail to adequately state the law regarding claims or defenses, or if counsel wishes to argue that a change in the law is appropriate based on some authority, special instructions should be submitted. Once a first draft of jury instructions is complete, counsel must compare them to the verdict form to ensure consistency.
At the charge conference, do not be afraid to object and where appropriate, to reject suggestions from the court that instructions have been agreed upon. A specific objection to the failure to give your requested instruction may be required to preserve an issue for appellate review. Likewise, an objection to the other party’s requested instruction may not suffice—counsel may be required to request a correct instruction. At a minimum, the objections must be specific enough to raise the points counsel would want to assert on appeal. For example, when taking the position that a requested instruction does not correctly state the law, counsel must explain why. It is also critical to explain to the courton the record how the language of the other side’s requested instruction is either legally inaccurate or not supported by the evidence.
Be sure the record reflects that the trial court ruled on all of your instructions, what all the rulings are, and any reasons given for granting or denying a requested instruction. At the conclusion of the charge conference and again before the jury deliberates, be sure to renew your objections to the instructions and verdict form as given to the extent they deviate from what you requested. Lastly, be sure that all instructions are filed and the record is complete.