Of course, this requires that you assume the model instructions will be used at trial—a relatively safe bet in most jurisdictions. While you should plan to push for a divergence from the model instructions when it helps your client, never assume the trial court will agree to diverge from the pattern instructions, even if it seems to make complete sense to do so (for example, if the applicable law has recently changed). Indeed, in some states, judges’ hands are tied and they generally must use the model instructions barring some clear reason to deviate, unless the area of law is unaddressed in the model instructions.
I recently dealt with this problem as defense counsel in a product liability case in a Pennsylvania state court. Pennsylvania product liability law was markedly affected by the state supreme court’s Tincher v. Omega Flex decision, 104 A.3d 328 (Pa. 2014). The case generally held that a plaintiff could prove a product defective by using either the consumer expectations test (where a product is “dangerous beyond the reasonable consumer’s contemplations”) or the risk-utility test (“the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions”). The Tincher opinion also overruled the previous controlling precedent set forth in a case called Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978).
However, the very first sentence a Pennsylvania jury hears in 2019, pursuant to the Pennsylvania pattern instructions regarding a strict liability product design defect claim, is pulled directly from Azzarello and provides that a “product is defective and the defendant is liable for all harm caused by the product if you find that. . . . at the time the product left the [defendant’s] control, it lacked any element necessary to make it safe for [its intended] use, or contained any condition that made it unsafe for its intended use]. . . .” Pa. Suggested Standard Civ. Jury Instruction 16.10. That sentence does not appear anywhere in the now-controlling Tincher decision other than when the court quotes Azzarello and critiques the “every element” passage for “likely stunt[ing] the development of the common law in this area from proceeding in a more logical, experience-based and reason-bound fashion.” Tincher, 104 A.3d at 379. And that sentence is logically at odds with the consumer expectation and risk-utility tests, both of which require a weighing of other factors in addition to simply whether the proposed design would make the product “safer.” Id. (Azzarello “offered a distinct standard from either a risk-utility test or a consumer expectation test.”).
While the current Pennsylvania model instructions later go into the various factors the jury must consider under those two threshold tests, the proverbial cat is out of the bag with the clear and broad “any element” instruction, and defense counsel is left to argue the more arduous factors that appear later in the model instructions. Thus, the question that we faced—and that counsel on both sides of a case face under similar circumstances—is how best to work with a model instruction that works against your client, when you know the judge is likely to require use of the model instruction?
First, make sure you are deeply familiar with not just the model instruction in question but also all the potentially relevant model instructions. There very well may be some other instruction that, if employed, will offset the damage done by the unfavorable one. In the Pennsylvania example above, other model instructions set forth the factors that the jury must consider when evaluating the consumer expectations and risk-utility tests, several of which usually benefit the defendant (particularly where the user had some familiarity with the product or some specialization or training and where the plaintiff’s proposed alternative design was not feasible). When such counterbalancing instructions are available, be sure to include them in your proposed jury charge; your adversary is not likely to be the one to propose this, so you will need to be alert to this issue. The inclusion of additional Pennsylvania product liability model instructions in my recent trial likely offset the Azzarello-based instruction (or, if they did not offset that instruction, they at least did no harm, as we obtained a favorable verdict).
Second, if you expect the judge to give latitude with the wording of the charge, consider trying to blend a model instruction with something of your own creation that you think more accurately reflects the relevant law. Judges should understand that you are simply fulfilling your ethical duty as an advocate and preserving your right to appeal on the jury charge. Of course, a jury charge that matches the model instructions will rarely be disturbed on appeal, but the model instructions cannot anticipate every factual permutation, and some cases may benefit from a more narrowly tailored set of jury instructions. The fact that most model jury instructions are not mandatory implicitly opens the door for some modification of the language or straying from the language altogether.
The simple reality, however, is that a non-standard jury instruction is likely to be modified or rejected outright. In the better-than-average chance that the litigant’s tailored instruction is rejected by the trial judge, it is important to be precise in stating an objection. See, e.g., Fed. R. Civ. P. 51(c)(1) (“A party who objects to an instruction or the failure give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection.”); McDowell v. Hartzog, 736 S.E.2d 395, 396 (Ga. 2013) (“[O]bjections to instructions given [must] be ‘stated distinctly enough for a “reasonable” trial judge to understand its nature, enabling him to rule intelligently on the specific point.’”). Jury charges remain a popular justification for appellate decisions overturning trial court judgments, and trial court advocates should not close that door simply because their objections to the charge were overgeneralized.
A final consideration that might be difficult to fully embrace when trial is rapidly approaching is the role the trial lawyer plays in shaping model instructions. These instructions, after all, are fluid things. They change when the law changes, and the missing link between changing law and a corresponding change in the model instructions is the lawyer who realizes that a jury charge might need updating:
[A] model jury charge does not necessarily reflect the approved language of the [state supreme] Court itself. Thus, only when the Court has occasion to address the contents of an adopted charge can [the lower] court[s] and practitioners rest assured that the language adopted is consistent with the Court’s instructions.
Flood v. Aluri-Vallabhaneni, 70 A.3d 665, 677 (N.J. Super. Ct. App. Div. 2013).
While nobody can dispute that the committees that shape model jury instructions do yeomen’s work and take seriously their task of shaping the model instructions to the current law of the jurisdiction, every attorney should contribute to the process of ensuring model instruction accuracy if some discrepancy is noticed. Again, this is easier said than done, particularly if the instruction touches only some peripheral issue in the case and the usual exigencies of trial are clamoring for attention.
Model instructions do not always accurately state the law. When you are convinced your jury will hear an inaccurate instruction or one that disfavors your client, it is important to suggest that the court provide a counterbalancing instruction, if one exists, or to propose an alternative instruction that you believe more accurately states the law. If the trial judge refuses to use the proffered instruction, make a precise objection to the form of the jury charge. That precision may ultimately serve as the catalyst to a rewrite of the instruction at issue. In that case, you will have benefited your client and practitioners in that jurisdiction.