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Drafting Jury Instructions: Tips for Trial Counsel

Jury instructions provide the jury with the legal structure and guidelines necessary to analyze the evidence and argument presented at trial. Without proper guidance through good instructions on the law, the jury is not as likely to get it right.

So, jury instructions should never be an afterthought, prepared in the midst of trial or at the end of the case. Instead, they should be prepared, at least in draft form, well before trial begins — otherwise, you will not know what evidence must be admitted at trial to prove the claims and defenses or what grounds to assert in a motion for directed verdict or in defense thereof.

Jury instructions always should be drafted before trial begins. Ideally, instructions should be prepared at the outset of the case (and updated throughout the litigation), as they will provide a roadmap for discovery and possible pretrial motions, including dispositive motions such as motions for summary judgment.

To this end, of course, it is critical to request instructions that are correct as a matter of existing law. You do not want to interject invited error into the trial. If you believe the existing law in your forum is wrong on a certain point, request an instruction that reflects what you believe the law should be, while obviously being candid with the trial court that this is not yet the law. Use your case to try to change the law and preserve the issue for appeal through your requested instructions. Jury instructions can provide a fertile field for error, both for your client and against your client on appeal, so take them very seriously and involve your appellate counsel in their preparation.

Importantly, never assume the standard or pattern instructions in your jurisdiction correctly state the law. The law may have changed, but the standard instruction may not have been revised yet due to the length of time it takes to make changes to such standard jury instructions. See, e.g., Bankers Multiple Lines Ins. Co. Farish, 464 So. 2d 530, 533 (Fla. 1985) (standard instruction conflicts with recent supreme court instructions); R.J. Reynolds Tobacco Co., Inc. v. Jewett, 106 So. 3d 465 (Fla. 1st DCA 2012) (reversing for failure to give requested non-standard instruction that would have enhanced “jury understanding of the law,” and noting slow pace of revisions of standard instructions that necessarily emphasize accuracy over speed). By the same token, never assume that a jury instruction requested by opposing counsel correctly states the law just because some authority is cited in support of it. You may invite error if you agree an erroneous instruction can be given.

Consider whether you need preemptory instructions on issues that were resolved before trial, such as on motion for summary judgment. Also, consider what case-specific instructions you want given. If there is evidence supporting an instruction under your theory of the case, you are entitled to have it given. See Febres v. Challenger Caribbean Corp., 214 F.3d 57, 62 (1st Cir. 2000) (“A party has a right to an instruction on her theory of the case, provided that her theory is both valid in law and supported by evidence in the record”); see Hasbrouck v. Texaco, Inc., 842 F.2d 1023, 1044 (9th Cir. 1987) (same); U.S. v. Heller, 830 F.2d 150, 155 (11th Cir. 1987) (same). You may also need instructions on statutes or legal doctrines, such as the Slavin doctrine and the like. See Slavin v. Kay, 108 So. 2d 462 (Fla. 1958); Foreline Sec. Corp. v. Scott, 871 So. 2d 906 (Fla. 5th DCA 2004) ( in negligence action brought by bank teller, security system installer entitled to jury instruction on the Slavin doctrine, providing that a contractor was not liable for injuries to third parties after the owner accepted the work unless the defect at issue was latent and could not have been discovered by the owner or unless the contractor was dealing with inherently dangerous elements).

If you do not request or object to an instruction on a particular theory or issue, you may waive the point. See McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 306 (5th Cir. 1993) (“If a party neither requests submission of issue nor objects to the omission of that issue from the special interrogatories given to the jury, such party is deemed to have waived its right to have the jury determination issue.”); McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1509 n.10 (11th Cir. 1990) (“Each party is responsible for requesting whatever jury instructions it may deem appropriate, and failure to so request, or to object to an instruction deemed inappropriate, precludes ‘assign[ing] as error the giving or the failure to given an instruction’”).

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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