You have been asked to prepare a set of jury instructions and a verdict form for trial.  What do you do? Where do you start?  In my last op-ed, I discussed how to prepare for the charge conference.  Now it’s time to talk about how to persuade the court to give your requested instructions, the charge conference itself and how to ensure your issues are preserved for review, both as to your requested instructions and your objections to the other side’s proposed instructions.

III. During the Charge Conference

You have your requested instructions and arguments ready, but what should you expect at a charge conference? Some judges may not schedule charge conferences and you may have to specifically ask for such a conference. If the judge refuses to hold a charge conference, object on the record. Also, always ensure that a court reporter is present whenever the instructions or verdict form are discussed. If discussions occur outside the court reporter’s presence, be sure to state for the record what was argued and ruled on when the court reporter is present.

At the charge conference, do not be afraid to object and where appropriate, to reject suggestions from the court that instructions should be or are 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 -- you may be required to request a correct instruction.

Make sure you know the requirements for preserving these issues in your jurisdiction before you go to the charge conference. At a minimum, the objections must be specific enough to raise the points you would want to assert on appeal. See Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001) (“Objections to a charge must be sufficiently specific to bring into focus the precise nature of the alleged error.”).

For example, if you believe a requested instruction does not correctly state the law, you need to explain why.  Other potential grounds for objection to a particular instruction include:

  • It fails to provide relevant criteria for the jury’s determination of the issue.
  • It assumes the answer to an issue of fact and thereby takes that issue away from the jury.
  • It is contradictory to another instruction or is internally contradictory.
  • It effectively grants a directed verdict for the other party on a claim or defense.
  • It tends to endorse the other party’s theory of the case or argument.
  • It is ambiguous as to the parties’ burden of proof.
  • It fails to instruct the jury on your theory of the case.
  • It is confusing or misleading.
  • It incorrectly states the law or is not supported by the evidence. 
  • It improperly varies from the standard instruction.
  • It addresses an issue not pleaded, not included in the pretrial stipulation, or not proved at trial.
  • It “indulges and even encourages speculations.”
  • It incorrectly includes a non-party.

(See S. Walbolt & C. Alonso, “Jury Instructions: A Road Map for Trial Counsel.” Litigation, The Journal of the ABA Litigation Section, Vol. 30, No.2, Winter 2004, for a discussion of possible objections). 

Also, be sure that you explain to the court on the record how the language of the other side’s requested instruction is either legally inaccurate or not supported by the evidence, or is otherwise objectionable.  For example, you should object to instructions that are confusing or misleading when considered in light of other instructions, the facts of the case or the verdict form. Also, object to instructions that use words that are too legalistic for a lay person to understand or that are not neutral.

What do you do when the court has overruled your objection to an instruction and you now want to modify the instruction? First, you must be clear that you are only suggesting such "alternative" instructions or modifications in light of the trial court’s rulings, which you object to, and that even the giving of this modified or alternate instruction will not cure the prejudicial harm from that ruling. Sometimes proposing a new instruction or the modification of an instruction reads on the transcript like you are agreeing that this resolves the objection you originally raised. This is because the trial court is trying to get agreement on the instructions.

Do not hesitate to advocate for your requested instructions, without compromise. Making it clear that an alternate or modified instruction is not enough to correctly charge the jury on the point should allow you to balance your desire to get the best instruction against your desire to preserve the record for appeal.

Be sure the record reflects that the trial court ruled on all of your requested instructions and objections to other instructions, what all the rulings are, and any reasons given for granting or denying a requested instruction. You must be sure that the instruction is identified on the record, by page or by number. Sometimes instructions may not be considered in the order they are requested. Do not forget to return to instructions that were left for later consideration. It helps to place a check at the top corner of each instruction when it is ruled upon and tab with a sticky flag those that have not been ruled on. This allows you to flip through each page quickly to ensure you have a ruling on each instruction. It is also helpful to bring a laptop to court so that you can modify instructions in court and provide a copy to the court and parties immediately.