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? Over the next several weeks, we will offer some basic guidelines for drafting jury instructions or a verdict form, preparing for the charge conference, and preserving any error that may occur during or after the charge conference.
The importance of having clear jury instructions, objections and rulings thereon cannot be underestimated, as jury instructions may be a fertile ground for appeal. Jury instructions are often reviewed de novo because they involve questions of law, so it is imperative that you preserve all potential issues related to the instructions and verdict form.
- Drafting Instructions
When beginning the process of drafting jury instructions, consult a number of sources. Start with your jurisdiction’s standard or pattern instructions. Many jurisdictions provide model instructions and verdict forms for particular claims or defenses. Trial courts will usually use these instructions unless you can show that they do not accurately describe the current state of the law or are otherwise insufficient for your case.
If you think the standard instructions do not adequately state the law on your claims or defenses, or if you would like to argue that a change in the law is appropriate based on some authority, you should submit special instructions. Special instructions should be drafted after you have reviewed the statutes and case law that apply to your claims or defenses. Keep special instructions as short and simple as possible. Additionally, ask your colleagues for instructions they may have used in similar cases or before the same judge. They may provide insight not only with respect to appropriate special instructions, but also as to the court’s charge conference procedures.
Be organized. Make sure that the instructions are numbered or otherwise identified so that they are easy to refer to and identify when discussing them with opposing counsel or when referring to them during the charge conference on the record. Indicate what authority supports each instruction. In this regard, it is helpful to have each instruction on a separate page. Also, consider referring to the parties by their names (or a shortened version of their names) rather than "plaintiff" or "defendant." Parties are seldom referred to as plaintiff or defendant during trial – their names are used instead. As a result, instructions that refer the parties only as plaintiff and defendant, as many pattern instructions do, can be confusing to jurors, especially when there is a counterclaim or cross-claim in the case.
Once you have a first draft of your instructions, read them as a whole to ensure that all issues are addressed and there are no internal inconsistencies or conflicts. Also, compare them to the verdict form to ensure they complement each other and are consistent. Then, ask someone who knows nothing about the case (preferably a non-lawyer) to read them or, better yet, to listen to you read them.
Stay tuned for part 2: preparing for the charge conference.
This series is adapted from Practical Guidelines for Jury Instructions, Verdict Forms, the Charge Conference, and Preserving Error by Cristina Alonso published in the Summer 2014 issue of the ABA’s Product Liability Committee Newsletter.