The Basics of Jury Instructions
Of all the areas of litigation practice that pose traps for the unwary, jury instructions may be the most significant. Jury instructions are meant to be concise statements of the law, in plain English, that the jury must use in determining whether the parties proved their cases. At the end of the trial, the judge will read the jury instructions aloud to the jurors and then provide them with written copies for their reference during deliberations.
There will be standard jury instructions that do not differ much from case to case, reminding the jury not to do outside research, or rely on information that was not put into evidence. There might also be well established jury instructions in your jurisdiction that address the elements of a claim or defense that judges prefer not to vary. But most cases are likely to present at least a few issues or questions of law for which there is not already a standard jury instruction. Or there might be a standard jury instruction, but the particular facts of your case require that it be modified in order to make sense
Why Jury Instructions Are Such a Challenge?
Jury instructions are just one of about a hundred things a trial lawyer must keep in mind during those final pre-trial preparations, along with motions in limine, preparing trial exhibits, subpoenaing the witnesses, preparing copies of all trial binders, drafting the opening statement, and having the demonstratives made, just to name a few.
Because the jury instructions do not feature in the trial until after all the evidence has been presented, an overworked or under-resourced attorney might be tempted not to give them enough attention until late in her trial preparations. This is a big mistake.
Jury instructions are an areas where most litigators have very little practical experience. Since most cases never get to trial and many trials that do start are settled before they’re ever submitted to a jury, many litigators will have long and even very successful careers without ever really developing the skills of preparing good jury instructions.
Why Jury Instructions Are a Trap for the Unwary
Few areas of trial experience are as important as jury instructions. Improper jury instructions are one of the surest ways for a verdict to be reversed on appeal. Why? Because unlike other issues that might be considered harmless error (some evidence that was excluded when it shouldn’t have been, an objection improperly overruled), stating the law incorrectly for the jury is almost never a harmless error. The law assumes that juries faithfully apply the facts to the law they are given, so if they are given the wrong law, it is presumed it affected their deliberations, resulting in the need for a whole new trial.
What are some ways an appellate court might find fault with jury instructions?
A party may seek inclusion of a jury instruction that is not warranted because it wasn’t supported by the evidence presented at trial. If there was no testimony or other evidence of negligence at trial, for example, jury instructions about negligence would not be appropriate and providing them to the jury could lead to confusion. In other instances, lawyers might seek to have included a modified jury instruction that is not a correct statement of law, or that uses language that is itself confusing. If the judge agrees to give a jury instruction that a reviewing court determines was an incorrect statement of the law that can jeopardize the verdict in the case. Inexperienced attorneys may press too hard for jury instructions that are not sufficiently neutral and instead read like advocacy statements. These are another way to invite reversible error into your trial.
Despite all the time pressures of pre-trial preparations, your attorney needs to give sufficient attention to the jury instructions, to ensure they are clear, concise, and correct statements of the law. She needs to be prepared to push back against erroneous instructions your opponent wants to give, without being too overzealous in pushing for instructions that, while on their face are favorable to you, would create an opportunity for a trial win to be overturned on appeal. Crafting and advocating for proper jury instructions is a skill honed with experience and the unwary procrastinate on this important task at their client’s peril.
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