Drafting Instructions
When you begin to draft jury instructions, consult a number of sources. Start with your jurisdiction’s standard or pattern instructions. Many jurisdictions provide model instructions and verdict forms for particular claims or defenses. Trial courts will usually use these instructions, unless you can show that they do not accurately describe the current state of the law or are otherwise insufficient. If you determine that additional instructions are necessary, these instructions are referred to as “special instructions.”
If you think the standard instructions do not adequately state the law, or if you would like to argue that a change in the law is appropriate based on some authority, you should submit special instructions. Special instructions should be drafted after you have reviewed the statutes and case law that apply to your claims or defenses. Keep special instructions as short and simple as possible. Additionally, ask your colleagues for special instructions they may have used in similar cases, or before the same judge. They may provide insight not only with respect to appropriate special instructions, but also as to the court’s charge conference procedures.
Be organized. Make sure that the instructions are numbered or otherwise identified so that they are easy to refer to when discussing them with opposing counsel, or on the record during the charge conference. Indicate what authority supports each instruction. It is helpful to have each instruction on a separate page. Consider referring to the parties by their names (or a shortened version of their names) rather than as plaintiff or defendant. Parties are seldom referred to as plaintiff or defendant during trial—their names are used instead. Instructions that refer to the parties only as plaintiff and defendant, as many pattern instructions do, can be confusing to jurors, especially when there is a counterclaim or cross-claim in the case.
Once you have a first draft of your instructions, read them as a whole to ensure that all issues are addressed and that there are no internal inconsistencies or conflicts. Next, compare them to the verdict form to ensure that they complement each other. Then ask someone who knows nothing about the case (preferably a non-lawyer) to read them or, better yet, to listen to you read them.
Preparing for the Charge Conference
Bring to the charge conference copies of all pertinent authority for instructions or verdict forms. Consider providing the court with a binder that includes the instructions, verdict form, and authority you will rely on. But it is not enough to simply hand this to the judge. You must file the instructions and verdict form with the clerk’s office, so that you have a proper record for appeal. Likewise, make sure all other parties’ requested instructions are filed with the court. Be sure to compare your instructions to the opposing party’s, so that you can bring any differences to the trial court’s attention during the charge conference. It is helpful to cross reference the instructions on your copy, or to create a chart that reflects your numbered instructions and how they correspond to the other side’s instructions. Also, have written notes of your objections to the opposing party’s instructions at the charge conference. Every appellate lawyer who has ever reviewed the cold record of a charge conference will tell you that the record is almost always confusing, with people interrupting each other, talking in shorthand, and referring to things that are never identified on the record. To avoid such confusion, follow these simple steps:
1. Create a chart that reflects your numbered instructions in one column and the other side’s corresponding instruction in the next column.
2. Cross-reference your instruction to opposing counsel’s instruction (i.e., note on your #3 instruction for legal cause that it is similar to opposing counsel’s #7 instruction). That way it is easier to go back and forth between different sets of instructions.
3. Make notes of every objection right on the instruction. That way you will always have your objection handy, even if the judge is jumping around between instructions.
4. Cross-reference on opposing counsel’s instructions why your instruction is different or better.
5. Make sure you have extra clean sets of unstapled instructions, so that you can merge your instructions with those of opposing counsel according to the court’s rulings.
6. File your written objections and the final version of the instructions.
7. Do the same with the verdict forms.
See S. Walbolt & C. Alonso, “Jury Instructions: A Road Map for Trial Counsel,” Litigation, Vol. 30, No.2 (Winter 2004).
During the Charge Conference
You have your instruction and arguments ready, but what should you expect at a charge conference? Some judges may not schedule charge conferences, and you may have to specifically ask for such a conference. If the judge refuses to hold a charge conference, object on the record. Also, always ensure that a court reporter is present whenever the instructions or verdict form are discussed. If discussions occur outside the court reporter’s presence, be sure to state for the record what was argued and ruled on when the court reporter is present.
At the charge conference, do not be afraid to object and, where appropriate, to reject suggestions from the court that instructions have been agreed upon. A specific objection to the failure to give your requested instruction may be required to preserve an issue for appellate review. Likewise, an objection to the other party’s requested instruction may not suffice—you may be required to request a correct instruction. Make sure you know the requirements for preserving these issues in your jurisdiction before you go to the charge conference. At a minimum, the objections must be specific enough to raise the points you would want to assert on appeal. See Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001) (“Objections to a charge must be sufficiently specific to bring into focus the precise nature of the alleged error.”). For example, if you believe a requested instruction does not correctly state the law, you need to explain why. Also, be sure that you explain to the court on the record how the language of the other side’s requested instruction is either legally inaccurate or not supported by the evidence.
Object to instructions that are confusing or misleading when considered in light of other instructions, the facts of the case, or the verdict form. Also, object to instructions that use words that are too legalistic for a lay person to understand.
What do you do when the court has overruled your objection and you now want to modify the instruction? First, you must be clear that you are only suggesting such “alternative” instructions or modifications in light of the trial court’s rulings, which you object to, and that even the giving of this modified or alternate instruction will not cure the prejudicial harm from that ruling. Sometimes proposing a new instruction or the modification of an instruction reads on the transcript like you are agreeing that this resolves the objection you originally raised. This is because the trial court is trying to get agreement on the instructions. Do not hesitate to advocate for your requested instructions, without compromise. Making it clear that an alternate or modified instruction is not enough to correctly charge the jury on the point should allow you to balance your desire to get the best instruction against your desire to preserve the record for appeal.
Be sure the record reflects that the trial court ruled on all of your instructions, what all the rulings are, and any reasons given for granting or denying a requested instruction. You must be sure that the instruction is identified on the record, by page or by number. Sometimes instructions may not be considered in the order they are requested. Do not forget to return to instructions that were left for later consideration. It helps to place a check at the top corner of each instruction when it is ruled upon and to tab with a sticky flag those that have not been ruled upon. This allows you to flip through each page quickly to ensure you have a ruling on each instruction. It is also helpful to bring a laptop to court so that you can modify instructions in court and provide a copy to the court and parties immediately.
The Verdict Form
The verdict form should go hand-in-hand with your instructions. There are important strategic and legal issues you must consider when drafting the verdict form. First, consider whether the “two-issue rule” applies to your claims or defenses in your jurisdiction, so that questions are requested that will preserve your points for appeal. Under the two-issue rule, an appellant cannot show reversible error when an error relates to one claim or defense, but the verdict does not reveal whether the appellee prevailed on that basis or on another not affected by the error. See, e.g., Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181 (Fla. 1977) (appellate court will not grant a new trial where the jury has rendered a general verdict and the appellate court finds no error as to one of the theories on which the jury is instructed and could have based its verdict).
Next, consider the number of questions you want to ask on the verdict form. The more questions the jury is asked, the more opportunities it has to deny liability. (Frequently, answering “no” to any question on liability will result in a defense verdict.) On the other hand, the more questions the jury is asked, the more opportunities it has to make mistakes and reach an inconsistent verdict. Just as you did with the jury instructions, file with the court a copy of your requested verdict form and that of other parties.
Lastly, at the conclusion of the charge conference and again before the jury deliberates, be sure to renew your objections to the instructions and verdict form as given to the extent they deviate from what you requested. Never preface your objection by saying it is merely “for the record.” It is not. It is an effort to provide the jury with correct instructions and a proper verdict form. Ask the court to confirm that your objections are preserved through the end of trial, and need not be repeated after the charges are given to the jury, if that is sufficient in your jurisdiction. Absent such a ruling, ask for a side bar either immediately before or after the charges are given and before the jury deliberates and again state your objections on the record.
The Court’s Reading of the Instructions to the Jury Once the instructions and verdict form are finalized, try, if at all possible, to read them in their entirety before they are read to the jury. When the court reads the instructions to the jury, listen and compare them to the instructions the court agreed to give. Make sure they are the same as any written instructions that will be submitted to the jury. If there is any difference between the two, 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 its initial instruction was given in error. Consider whether a motion for a mistrial is warranted. If you do not move for a mistrial, and the jury is told the instruction was incorrectly given and should be disregarded, the issue may be waived.
Drafting jury instructions and a verdict form can be challenging, but preparing ahead of time and staying organized will make the process smoother. Start thinking about the jury instructions and verdict form early on and well before the trial starts. Continue thinking about them and modifying them in light of the court’s rulings and evidence adduced at trial. And do not forget to ensure that all instructions are filed and the record is complete.
