GPSolo Magazine - September 2004

Trial Practice

Jury Instructions: A Road Map for Trial Counsel

Careful trial lawyers prepare instructions at the beginning of the case as a “living” document, revising and supplementing them as the case moves toward trial. These instructions can help you win at trial and preserve error for appeal.

Drafting instructions. Keep each requested instruction short and simple. Consider your instructions as a whole to ensure they provide sufficient guidelines to properly apply the law to the particular issues in the case, framed from the view of the evidence supporting your theory of the case.

Do not assume that your jurisdiction’s pattern instructions correctly reflect current law. Make sure that a standard instruction has not been judicially or statutorily disapproved.

Similarly, do not limit your requested instructions to the current state of law. Consider whether there are cutting-edge issues you may want to raise to change the law. Although you must always disclose any contrary controlling law, ask for the most favorable instruction warranted by a good-faith argument for a change in the law.

After your requested instructions are in final form, compare them to the pleadings and to the pretrial stipulation to ensure that you have proposed instructions on all the issues in the case.

Before the charge conference. Beside providing opposing counsel and the judge with your requested instructions at the charge conference, file them in the court record itself. Make sure you have a copy of the other side’s requested instructions and that they, too, are filed in the record.

Prepare to steer the jury away from roadblocks with “alternative” instructions in case the court rules that certain issues will be submitted to the jury, or certain requested instructions of the other party will be given, over your objection.

Review the other party’s requested instructions before the charge conference, as well as the authorities cited as support for the other side’s instructions. Do not assume that an instruction that purports to be a standard instruction actually is the standard instruction. Compare the requested instruction word for word with the standard.

When possible, prepare and file written objections to the other side’s requested instructions and verdict form before or at the charge conference. Follow these simple steps:

1. Cross-reference your instruction to opposing counsel’s instruction.

2. Make notes of every objection right on the instruction.

3. Cross-reference opposing counsel’s instructions to establish why your instruction is different or better.

4. Bring clean sets of instructions so you can merge your instructions with those of opposing counsel according to the court’s rulings.

5. ‑File your requested instructions, your written objections, and the final version of the instructions with the court.

At the charge conference. If you want preliminary instructions given to the jury, you must ask for a preliminary conference before trial. If the court insists on holding the “final” charge conference before trial, ask for an opportunity to have another conference after the close of evidence—the evidence may give rise to the need for different or additional instructions. At a minimum, file your specific requests in the record before the judge instructs the jury.

Always ensure that a court reporter will be present at the conference. Make all your requests for instructions on the record, make all objections to instructions on the record, and get all the rulings of the court on the record.

Be particularly careful to object to instructions that might be correct in a vacuum but are confusing or misleading when considered in light of other instructions or the facts of the case. Object to negative or preemptive instructions or to instructions that use words that are too legalistic or fail to use plain language.

The most dangerous pitfalls in a charge conference occur when you try to work with the court to modify an instruction you believe should not be given or when you suggest an alternative instruction. With regard to a modified instruction, make it clear that you do not acquiesce in the giving of the instruction, even as modified. With regard to an alternative instruction, make it clear on the record that you are suggesting such “alternative” instructions only in light of the court’s rulings, which you object to, and that even the giving of this instruction will not cure the prejudicial harm from these rulings.

Review the final set of instructions exactly as it will be submitted to the jury. Make sure there has been no computer “glitch” in finalizing them.

The court’s reading of instructions. Listen to the court’s oral instructions. While they are being given, compare them to the instructions the court agreed to give, and make sure they are the same as any written instructions that will be submitted to the jury. If there are differences, the oral instructions will likely control on appeal.

If there is an error, ask the judge to correct the oral instruction and specifically advise the jury that this instruction was given by mistake. Consider whether the error was serious enough to require a motion for a mistrial. If you did not get an advance ruling that your objections during the charge conference are preserved, renew your objections on the record before the jury begins its deliberations.

Make sure that you have a copy of all the instructions you requested, a copy of the instructions actually given, and a copy of the instructions requested by the other party. Make sure they are all filed with the court.

References to instructions in closing argument. Consider addressing important instructions in closing argument and explaining how they should be applied to the facts in the case. Consider walking through the verdict form; demonstrative aids can be helpful.

During your opponent’s closing argument, watch for misstatements of the law or the court’s instructions. Ensure that opposing counsel’s visual aids reflecting the instructions or the verdict form are correct. To preserve error, make sure that the visual aid is made part of the record or that its contents are read into the record.

If a misstatement occurs, do not simply object. Consider whether the point is significant enough to request a mistrial. At a minimum, ask the court to instruct the jury correctly on the point.

Jury deliberations and verdict. If the jury asks a question about a particular instruction, ask the court to give the jury all of the instructions on that point so they can consider the requested instruction in context. In addition, you must object again to the instruction (or absence of your requested instruction) if the jury indicates some concern about it. You also should request a curative instruction and possibly ask for a mistrial.

If there are defects or inconsistencies in the jury’s findings when the verdict is actually rendered, consider whether to object and raise your concern before the jury is discharged. This is a tough judgment call that you will have to make instantly, and often there is no obvious right answer. On the one hand, failure to raise an inconsistency in the jury’s general verdict waives a challenge on appeal. On the other hand, if you do raise the inconsistency before the jury is discharged, the jury obviously may resolve it against you. Then you will have lost at trial and also lost any inconsistency argument for appeal, unless you can tie the original inconsistency into some defect in the instructions or verdict form and argue that a mistrial was required.

Sylvia Walbolt is a shareholder at Carlton Fields, P.A., and chair of its appellate practice group; she can be reached at Cristina Alonso is an associate at Carlton Fields in its appellatepractice group; she can be reached at

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- This article is an abridged and edited version of one that originally appeared on page 29 of Litigation, Winter 2004 (30:2).

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