Remember that civil procedure professor from law school? The one who told you that, once the complaint and answer have been filed, your first job is not to answer interrogatories, schedule depositions or write reports to the client, but instead, to draft a proposed jury charge? Of course you don’t. Or at least you don’t follow her advice, and you are not alone. In a day and time when fewer and fewer cases ever make it to the jury room, preparing a proposed jury charge is at the bottom of most litigators’ lists. It shouldn’t be.
Preparing a proposed jury charge at the onset of litigation will help streamline your case – producing more consistent results and a more cost effective process for your client in the long run. You wouldn’t set off on a cross country road trip without a map or, at a minimum, a reliable GPS app. The same principle applies to litigation. If the case is your journey and a good result for your client is your destination, then the charge is the guide that will get you there.
The Role of the Charge Pre-Trial
A proposed charge has several important uses pre-trial. First and foremost, preparing the charge forces you to evaluate the state of your live pleadings while there is still ample time to amend. Setting out the elements of each cause of action and defense may help you to see the potential flaws in a claim and, where fatal, eliminate such a claim before it wastes valuable time and resources. This exercise may also turn your mind to additional claims or defenses that did not present themselves initially, giving you the opportunity to include them before it is too late.
Perhaps the most overlooked use for the charge pre-trial, however, is as an outline for discovery. Particularly in complex litigation, it is easy to get caught up in boxes of documents and lose sight of what role, if any, that information will actually play in the trial of the case. Using your proposed jury charge as an outline will allow you to anchor the evidence – whether it be fact or opinion, testimonial or documentary – to the elements that you must actually prove, or alternatively disprove, to win. What better way to know exactly what to ask at a forthcoming deposition or what additional documents to request? At the same time, this exercise will shine a light on the holes in your opponent’s case, allowing you to develop effective strategies to use those gaps to your client’s advantage.
A proposed charge prepared early in the case will also assist in evaluation and preparation of your motion for summary judgment. Once each piece of relevant evidence has been cross-referenced to the claims and defenses in the proposed charge, potential grounds for summary judgment will become readily apparent and the time and resources necessary to prepare your dispositive motion will be drastically reduced.
The Role of the Charge in Settlement Negotiations
Having your proposed charge in hand at mediation can go a long way towards effectuating settlement of your case. This is particularly true if you have used the charge as a guide throughout the discovery process, and therefore, have a good idea of how the evidence will match up to the required elements if, in fact, your case makes it to trial.
A well prepared charge also serves as a dispassionate backdrop against which to help your client evaluate the strengths and weaknesses of his or her case. Litigants naturally have strong feelings colored by their own perceptions of the relevant events. By introducing them to the concept of the charge before trial, you have a virtually unparalleled opportunity to educate them about the realities of relying on an unbiased jury as a means of resolving their disputes. Clients may be new to litigation and may have no idea how a jury comes to its decision. Even those clients that are experienced litigants may not have considered how the charge will narrow what the jury will actually be asked to consider in a given case. A stark look at how the facts stack up against the actual questions that the jury will likely be asked to consider can help to clarify the desirability of a given settlement offer.
The Role of the Charge at Trial and Beyond
“One of the main purposes of the jury charge is to provide a framework for the argument by counsel.” United States v. Stanley, 765 F.2d 1224, 1236 (5th Cir. 1985). When you reach the courthouse steps on the day of trial, the likely content of the court’s charge should be well known to you, and that knowledge will go a long way towards eliminating any surprises in the areas of dispositive motions and preservation of charge error. With those worries aside, you can focus your attention on using the charge to lead the jury towards a decision which is in line with your view of the case.
* * * * * *
Upfront preparation of a jury charge represents a significant investment of time and resources. But it is a wise investment, and one that will save your clients time and money in the end. By using the charge as a tool to analyze the ultimate destination of your litigation, you will be putting yourself firmly in the driver’s seat with the knowledge you need to successfully navigate your client’s case.