Jury instructions and the verdict form are the keys a jury needs to unlock the proper analysis of the evidence and argument at trial, rendering the jury charge conference a critical aspect of any successful trial strategy.
With that in mind, it is critical to ensure the jury charge conference is transcribed or otherwise recorded. If you conference with counsel for other parties in an informal effort to reach agreement on instructions, go on the record thereafter to memorialize all of the objections and agreements. If there are other parties with aligned positions on legal issues, you may want to join in their objections or requested instructions.
Be as detailed as possible at the change conference with any objections to other parties' or the court's proposed instructions. Written objections are a best practice, as objections are hard to make on the fly. But even a general oral objection – “confusing, incomplete” – is better than nothing.
If an objected-to instruction is altered in an attempt to “cure” an objection, don’t just acquiesce – either by silence or affirmative agreement – unless it clearly does cure the objection. Expressly stand by your objection or risk waiving it. See Beatty v. Michael Bus. Mach. Corp., 172 F.3d 117, 121 (1st Cir. 1999) (“Silence after jury instructions ‘typically constitutes a waiver of any objections’ for purposes of appeal.”); Thompson v. Boggs, 33 F.3d 847, 856 (7th Cir. 1994) (plaintiff waived claim of error in refusing proposed jury instruction, as plaintiff’s counsel remained silent and did not object when judge stated that instruction would not be given).
Some potential objections include:
the instruction fails to provide the relevant criteria for the jury's determination of the issue; Bollenbach v. U.S., 326 U.S. 607, 612 (1946) (jury should be given "the required guidance by a lucid statement of the relevant criteria");
the instruction assumes the answer to an issue of fact and thereby takes the issue away from the jury; U.S. v. Adamson, 665 F.2d 649, 652 (5th Cir. 1982) (the instruction reduced the prosecution's burden of proving the requisite state of mind for the offense);
the instructions are contradictory -- this often happens when trial court is trying to give each party something, but the instructions may not work together; Penry v. Johnson, 532 U.S. 782, 789 (2001) (instruction stating jury could answer "no" to special issue only if it found reasonable doubt to answer "yes," failed to give effect to mitigating circumstances);
the instruction effectively grants a directed verdict on a claim or defense; Cf. Hardin v. Ski Venture, 50 F.3d 1291, 1294 (4th Cir. 1995) ("A set of legally accurate instructions that does not effectively direct a verdict for one side or the other is generally adequate");
the instruction is not neutral and balanced, but rather is argumentative or tends to endorse a particular theory of the case or argument; W.T. Rogers Co., Inc. v. Keene, 778 F.2d 334, 346 (7th Cir. 1985)("A jury should so far as possible not be instructed in a way that makes it much easier to decide in favor of one party than in favor of the other.");
the instruction is confusing or misleading (explain why); Japan Airlines Co. v. Port Auth. of New York & New Jersey, 178 F.3d 103, 110 (2d Cir. 1999) ("A jury instruction is erroneous if it misleads the jury or does not adequately inform the jury on the law.");
the instruction incorrectly states the law or is not supported by the evidence; Jaffee v. Redmond, 51 F.3d 1346, 1353 (7th Cir. 1995) ("Jury instructions `must be correct statements of the law that are supported by the evidence.'"); Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990) (same);
the instruction varies from the standard or pattern instruction in your jurisdiction; U.S. v. Hunt, 794 F.2d 1095, 1099 (5th Cir. 1986) (while trial courts are not mandated to follow Fifth Circuit Pattern Jury Instructions, it is good practice to do so); Reyes v. State, 783 So. 2d 1129, 1136-37 (Fla. 3d DCA 2001) (instructions were material departure from standard jury instructions and the statutory elements of the charged offense);
the instruction addresses an issue not pled or included in the pre-trial stipulation or not proven at trial; Thrift v. Estate of Hubbard, 44 F.3d 348, 355 (5th Cir. 1995) ("district court erred in instructing the jury on the issue because the [plaintiff] failed to plead that cause of action"); E.I. DuPont De Nemours v. Desarrollo Industrial Bioacuatico, 857 So. 2d 925 (Fla. 4th DCA 2003) (improper for jury to consider a claim that was not in the complaint);
the instruction "indulges and even encourages speculations." U.S. v. Branch, 91 F.3d 699, 712 (5th Cir. 1996);
the instructions as given fail to instruct the jury on your theory of the case. Ryan v. Atlantic Fertilizer & Chemical Co., 515 So. 2d 324, 327 (Fla. 3d DCA 1987) (litigant is entitled to have jury instructed on theories of defense when supported by the evidence); and,
the instruction improperly resolves or affects other issues in the case.
At the end of the charge conference, renew any objections to the instructions as given, for the reasons stated before, and to the failure to give any instructions you requested. See Mark Seitman & Assocs. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1532 (11th Cir. 1988) (defendant’s objection “at the charge conference to the instruction concerning damages…properly preserved [the issue] for appellate review”). Ask the court to confirm that these objections are preserved through the end of trial and need not be repeated after the charges are given to the jury. Absent such a ruling, approach the bench after the charges are given (and before the jury begins deliberating) and again state your objections on the record.
Finally, make sure you keep a copy of your requested jury instructions, every other party’s requested instructions and any proposed by the court, and make sure all are actually in the court file. If written instructions are given to the jury, make sure they are in the court file, as well. This is critical for purposes of any appeal.
For a more detailed discussion of jury instructions, see the article by Sylvia H. Walbolt and Cristina Alonso, “Jury Instructions: A Road Map for Trial Counsel,” Litigation, The Journal of the ABA Litigation Section, Vol. 30, No.2 (2004).
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