July 12, 2017 Articles

The Old-Timer’s Approach to Litigation: First, Draft Jury Instructions

Your litigation strategy may be enhanced by drafting a set of jury instructions at the outset of your new case.

By Edward A. Marod

One of the most efficient ways to start work on a new litigation matter, whether or not it is likely to be tried by a jury, is to draft jury instructions. And one of the most efficient ways to do this is to go to the standard (or pattern or suggested) jury instructions published by the relevant jurisdiction and use them to draft your own. 

Jurisdictions and Standard Jury Instructions
The Florida Supreme Court, for instance, promulgates standard jury instructions for civil cases and a separate set for contract and business cases. Many other jurisdictions do the same.

Although these publications contain caveats like “the Florida Supreme Court does not express an opinion as to their correctness,” they also say things like the following:

The Florida Standard Jury Instructions appearing on the court’s website . . . shall be used by the trial judges of this state in instructing the jury in civil actions to the extent that the Standard Jury Instructions are applicable, unless the trial judge determines that an applicable Standard Jury Instruction is erroneous or inadequate.

Indeed, when a judge decides to depart from the standard jury instructions, a separate order justifying the departure must be entered.

Elements of Jury Instructions
The typical set of standard jury instructions tells the practitioner what the judge must tell the jury about how to go about deciding a case, including the legal definition of the claims to be made or defended; the types of evidence that may be considered and how to evaluate them; the burden of proof for each party on particular issues; the defenses that might be available and how they are defined; in legal malpractice cases, whether a “trial within a trial” will be necessary; the way liability might be apportioned among defendants whether or not they are joined in the case; and the principles to be applied in determining the damages to be awarded.

Your case may be one that calls for a departure from the standard instructions, but it makes no sense to try to analyze the elements of the claims in your case from scratch when this sort of a resource is available.

Citations of Authority and Other Benefits
The standard jury instructions are usually filled with citations of authority to help you better understand the claims and defenses in your case. But, more than that, even the general instructions are a reminder of the paths available to enhance the credibility of your witnesses and how to attack the credibility of the opposing witnesses. They are also a reminder of the availability of the use of expert witnesses, summaries, and demonstrative aids and the importance of organizing the evidence to tell a cogent and compelling story.

Planning Discovery
A draft of a preliminary set of jury instructions [login required] from the relevant standard jury instructions also provides an excellent guide for planning discovery, as well as a framework into which to plug the results of that discovery to help you and your client evaluate the strength of the claims and defenses as they are developed. It might even help you realize that you need to request a custom instruction to fit your case before the night before closing argument.

Preparation, Preparation, Preparation
Preparing and revising [login required] your jury instructions at the beginning of your case also saves you the panic of trying to pull them together at the last minute in case an actual jury trial of a case materializes. Having worked with the instructions all along, having organized your discovery to fit them, and having seen the problems with the standard instructions caused by the evolution of the law over time, you will be much better prepared for the submission of instructions at pretrial, for defending against misleading instructions proposed by your opposing counsel, and for the charge conference itself (if one is allowed in your jurisdiction).

No Jury? No Problem
This approach is even helpful when you know there will be no jury trial, possibly because there is a waiver of jury trial or an enforceable arbitration clause in your case. Judges and arbitrators serving as fact finders can also be steered in the right direction by arguments drawn from the wording of the relevant jury instructions. And, to the extent that they themselves are former trial lawyers, they cannot help but be impressed by an approach so carefully pulled together through the substantial effort of old trial lawyers like themselves.

It is common knowledge that the typical standard jury instructions are the product of substantial effort by bar committees, usually comprised of experienced trial lawyers, with oversight by the judiciary or, in some cases, the legislature of the jurisdiction in question. Thus, the practitioner who knows what claims have been made in a case, or is deciding which claims to make on behalf of a client in a case, is well advised to track down the jury instructions applicable to those claims before doing anything else to prepare for trial.

Edward A. Marod is a shareholder of Gunster Yoakley & Stewart PA in West Palm Beach, Florida.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).