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The Jury Is In: Tips for Starting on Instructions Early

Erica Moran and Christine Kain


  • Drafting jury instructions early helps guide your case strategy, supports discovery efforts, and aids in crafting dispositive motions, ensuring the instructions align with current legal standards.
  • Clear and correct instructions help jurors apply the law properly, and preserved objections are crucial for appellate review.
  • Keep instructions simple, relevant, and well-organized, following local court formatting rules to ensure clarity and ease of use.
  • Be prepared to argue and defend your instructions during the charging conference, ensuring all objections are on record to preserve appeal rights.
The Jury Is In: Tips for Starting on Instructions Early
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Imagine that you are a month out from a three-week jury trial—you are preparing to defend the manufacturer of shoulder replacement devices against product liability claims alleging design defect and failure to adequately warn. You are in the throes of finalizing witness outlines, crafting your opening statement, creating demonstratives, and drafting motions in limine. Putting together jury instructions is also somewhere on your to-do list (if you can find it buried on your desk). You think to yourself, “This afternoon, I’ll hand the jury instructions off to a first-year. When I manage to come up for air, I can finalize them. There’s still plenty of time.”

However, you should avoid the temptation to put off jury instructions until the last minute. Pulling model jury instructions and relevant case law at the inception of your case can assist in discovery strategy, as well as crafting dispositive motions. Indeed, understanding how to draft clear and correct jury instructions, as well as arguing for proper instructions and preserving any objections, is essential to securing a verdict in your client’s favor that will withstand appeal. For example, in Wurster v. The Plastics Group, Inc., 917 F.3d 608 (8th Cir. 2019), the Eighth Circuit affirmed a take-nothing verdict in the face of multiple challenges raised by the plaintiff regarding the district court’s jury instructions. Ensuring that you are proposing jury instructions that are supported by the law and preserving your arguments and objections regarding jury instructions for the record are key to defending a positive verdict on appeal.

For next time, here is a background on why jury instructions matter and some best practices for drafting jury instructions.

Why Jury Instructions Matter

Jury instructions contain the legal elements that guide your case.

It is fundamentally important to understand the operative legal standards that will guide your case as soon as possible. By turning to the relevant model jury instructions in your case’s jurisdiction, you have a head start in identifying the legal elements you need to prove at trial, which will guide your discovery efforts and case strategy overall.

It is also important to speak with local counsel regarding any changes in the law in your case’s jurisdiction (as well as to conduct your own independent research). Understand whether there are competing standards or theories that may be applicable in your case.

For example, say your case is governed by Pennsylvania product liability law and that the plaintiffs in the case have alleged a strict liability standard in their complaint’s design defect cause of action. Before 2014, Pennsylvania product liability law adopted a pure strict liability standard based on a 1978 Pennsylvania Supreme Court decision, Azzarello v. Black Brothers Company, Inc., 480 Pa. 547 (1978). In 2014, in Tincher v. Omega Flex, 628 Pa. 296 (2014), the Pennsylvania Supreme Court explicitly overruled Azzarello and ostensibly set Pennsylvania products liability law on a new path, where a plaintiff must prove that a product was “defective” either under a consumer expectations test or a risk utility test. Both of these tests incorporate concepts of negligence and are more defense-friendly than the Azzarello strict liability standard previously in place. Indeed, since 2018, Pennsylvania courts have held that a strict liability jury instruction in the vein of Azzarello is “fundamental error.” Tincher v. Omega Flex, Inc. (Tincher II), 180 A.3d 386 (Pa. Super. Ct. 2018); but see Timmonds v. AGCO Corp., 253 A.3d 276 (Pa. Super. Ct. 2021) (holding that “Tincher does not bar [plaintiff] from proceeding under theories of both strict liability and negligence”) (unpublished). Indeed, in Pennsylvania, there are now competing sets of standard product liability jury instructions, a pro-plaintiff set (subscription required) issued by the Pennsylvania Bar Institute and a pro-defense set issued by the Pennsylvania Defense Institute.

Likewise, if your case is governed by Florida product liability law, you would certainly want to know that a Florida district court of appeal recently approved a trial court’s application of the risk utility test to a design defect claim, despite Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015), in which the Florida Supreme Court adopted the consumer expectation test to prove design defects. See Cavanaugh v. Stryker Corp., 308 So. 3d 149 (Fla. Dist. Ct. App. 2020).

Thus, it would be important to know early on in our example case that you may propose jury instructions based on recent case law—you would want to develop your case to defeat the consumer expectations and risk utility tests in addition to the strict liability theory that plaintiffs are proposing. And when it comes time to propose jury instructions, you will also be prepared to argue for a more defense-friendly standard.

Jury instructions guide the decision makers.

Jury instructions are one of the last things that the jury hears before deliberating—jurors may even have the opportunity to review written jury instructions during deliberation. Providing the jurors with clear, well-tailored instructions can help guide them to a positive outcome for your client.

Moreover, if you have polished jury instructions that are prepared prior to trial, these can be referenced and woven in throughout the presentation of the case. For example, jury instructions may become the basis of voir dire, as well as your opening statement. Not all jury instructions occur at the end of the case. You might request that the judge read an instruction on experts when expert testimony is being presented or instructions on damages when the focus of your examination switches from substantive issues to damages. In this way, jury instructions can be used to develop jurors’ understanding of how to apply the facts to the law, as well as guide them through key elements that were explained throughout a lengthy and complex trial.

Jury instructions are frequently the basis for appeal and reversal.

Finally, it is important not to give short shrift to jury instructions because they are a prime target on appeal and may form the basis for reversal. Take the Tincher case previously discussed. After the Pennsylvania Supreme Court overruled Azzarello’s strict liability standard, the case was remanded to the trial court to consider whether the defendant was entitled to a new trial under the new standard. The trial court concluded that a new trial was not warranted, reasoning that the jury would have reached the same verdict even if it had been instructed based on the newly articulated Tincher standard. See Tincher II, 180 A.3d at 395. But the superior court reversed, stating that the trial court “gave a charge on a determinative issue that failed to conform to the applicable law” and that this was “fundamental error.” Id. at 398. Likewise, in Transue v. Aesthetech Corp., the Ninth Circuit overturned a defense verdict where the district court gave jury instructions on strict liability rather than negligence for manufacturing and design defect claims. Transue v. Aesthetech Corp., 341 F.3d 911 (9th Cir. 2003) (underlying case applied Washington state law).

Understanding the law and crafting appropriate jury instructions is thus critical in order to withstand appeal, like the instructions in the Wurster case discussed at the start of this article. Wurster, 917 F.3d 608.

Best Practices for Drafting Jury Instructions and Preserving Your Right to Appeal

Start early.

The due date for jury instructions varies by jurisdiction and local practice. Federal Rule of Civil Procedure 51(a) provides that “at the close of evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give.” In contrast, some jurisdictions require the parties to trade proposed jury instructions several weeks before trial and for a set of joint proposed jury instructions to be filed one week before trial is set to begin.

No matter what rules you are operating under, you will not suffer from having a set of proposed jury instructions in the hopper early. As noted previously, you can start pulling these together early on in your case because this task will overlap with your research into the legal principles that are key to your defenses. Having model instructions pulled early will help you when conducting expert discovery and working on dispositive motions.

Know the rules.

Read Rules 49 and 51 of the Federal Rules of Civil Procedure or the relevant state rules regarding jury instructions. Then pull the local rules, as well as any standing orders or preferences issued by your judge. As the case goes forward, ensure you have read all relevant pretrial case management orders.

Don’t start from scratch.

There are multiple places to turn as you begin to put together your proposed jury instructions:

  • Model jury instructions. Nearly every state, as well as the majority of federal circuits, publish model (or “pattern”) jury instructions. The use of model jury instructions is mandatory in some jurisdictions (e.g., in Illinois, where there is a presumption that applicable model instructions will be used “unless the court determines that the [Illinois Pattern Jury Instruction] does not accurately state the law”), while in others, it is strongly encouraged (e.g., in California, where the Rules of Court state that the use of California civil model instructions are “strongly encouraged” unless a judge “finds that a different instruction would more accurately state the law and be understood by jurors”). See, e.g., Spiegelman v. Victory Mem’l Hosp., 392 Ill. App. 3d 826, 846 (Ill. App. Ct. 2017); Cal. Rule of Court 2.1050. In either case, if the jurisdiction in which you are trying your case has model jury instructions, you should apply those instructions. If jury instructions are required on an issue for which model instructions do not exist, you will need to propose special instructions and submit those proposed instructions with supporting, binding authority.
  • Instructions prepared by the defense bar. Where you have some flexibility in drafting your jury instructions, as in Pennsylvania, those put together by defense counsel in your area of practice may be a helpful starting point. The ABA also publishes product-liability-specific jury instructions. Even when you are bound by the jurisdiction’s model jury instructions, it is worth reviewing such jury instructions as they may alert you to changes in the case law.
  • Case law. As noted above, consult with local counsel regarding jurisdiction-specific law that is relevant to your case. In addition, conduct your own research regarding the legal elements of your claim or defense—do this at the beginning of your case and often throughout its life span.

Keep your instructions simple, relevant, and easy to use.

At base, your jury instructions should be tailored to the facts of your case. You should make sure each element contained therein is supported by legal authority and admissible evidence (and you should make sure you present evidence at trial to support each element). In addition, the following suggestions make for stronger jury instructions:

  • Avoid submitting more than one instruction on the same issue.
  • Avoid drafting argumentative instructions or one-sided instructions. Accurately and fairly state the law.
  • Be as clear and succinct as possible.
  • Include one instruction per page.
  • Assemble the instructions in a logical order.
  • Ensure that the formatting follows governing rules, including any local rules. For example, in federal court, absent deviation by a court’s local rules, proposed jury instructions are formatted as a pleading. Each instruction should be labeled with a title that indicates the issue or topic addressed by the instruction. They should be separately and consecutively numbered for ease of reference and should start on separate pages to allow the court to easily incorporate approved instructions in the final version. Cite supporting legal authority at the bottom of the page, below the instruction.
  • Consider including a table of contents for lengthy instructions.
  • Don’t forget jury instructions on how to complete the verdict form.

Be prepared to argue your jury instructions at trial.

Jury instructions will be argued at the charging conference after the parties have finished presenting their cases (in practice, this may take the form of several “mini-conferences”). Keep two important goals in mind with respect to the charging conference.

First, you want to convince the judge to give the jury instructions that will help win your case. To do so, you need to know the law front and back. Be prepared for the judge to pull up case law while you’re arguing. If there’s a shift in the law that favors your client, you need to know that and inform the judge. Consider inviting local counsel to be present at the conference if you are less comfortable or familiar with state substantive law.

Second, you want to preserve any appellate issues. In addition to working with an appellate lawyer to assist in preparing jury instructions that withstand appeal, you also need to make any objections to instructions on the record. Because the charging conference can be informal, if you ultimately object to the instructions that the court decides to provide, you may need to have a discussion on the record in order to preserve the issue for appeal. At trial, ensure that the instructions given match the written instructions. If the judge unintentionally misstates an instruction, notify him or her immediately in order to correct the error. You should also be prepared for attempts by the other side to revisit jury instructions throughout trial. In cases with enough at stake, consider including an appellate lawyer on your trial team to ensure that all appealable issues are preserved.


Turning to jury instructions early can help draw the contours of your case, on both legal and factual bases, as you gather evidence. Revisit jury instructions and guiding substantive law often—the law can change, sometimes in positive ways for your client. Having well-drafted jury instructions going into trial will allow you to weave the law into the presentation of your case and guide the jury through what might otherwise be a confusing and complex experience. Work on jury instructions throughout trial, rather than in a mad dash right before the charging conference, when the parties are embroiled in dozens of other pretrial submissions and trial preparations. Knowing the law and your instructions in a deeper way makes you a better advocate for instructions that help win your case.