Beyond the form: use jury instructions to your advantage at trial

[TOP VERDICTS SUPPLEMENT]

Jury instructions are among a trial lawyer's most important tools in connecting with and persuading jurors, yet they are often left to the last minute and are merely a rushed regurgitation of form instructions. In this article, we outline some tips for formulating and employing jury instructions and verdict forms to your advantage at trial.

Draft Your Instructions as Early as Possible

While it is tempting to push them to the bottom of the trial "to do" list, jury instructions and verdict forms should be drafted early -- ideally before discovery starts -- because they can and should serve as a roadmap for what the jury needs to hear for your side to prevail. Sometimes even experienced lawyers, particularly in complex trials with reams of evidence and scores of witnesses, lose sight mid-trial of what they need to establish to prevail on their claims or defenses. As a result, evidence supporting key elements is barely addressed or overlooked entirely, while tangential evidence is unduly emphasized. Then, when the jury is deliberating, they may not have evidence they need to decide in your favor, or may not understand its significance because the lawyers never tied it to the claims.

Pre-crafted jury instructions prevent such oversights, and ensure the jury hears evidence crucial to the case. Indeed, jury instructions and verdict forms are often used by seasoned trial attorneys not just in closing arguments, but in opening statements as well, as a means to frame the issues the jury will be deciding.

Form Instructions Are Just the Beginning

Conventional wisdom holds that courts are reluctant to stray from form instructions for fear of being overturned on appeal for failing to hew to the standard. However, a strategic combination of advocacy and research can result in modified instructions that can benefit your client significantly.

Allow ample time to draft and revise your proposed jury instructions before the charging conference. Thoroughly research the elements of each cause of action and defense at issue to verify that the form instructions for each cause of action reflect the current state of the law in your jurisdiction. If they do not, submit proposed instructions with supporting authority establishing the change in the law.

Next, find decisions applying the controlling law with explanations or reasoning favorable to your facts on which to base a proposed modification to a form instruction, and be prepared to argue the most recent and compelling authority supporting your position to the court. The court has broad discretion in tailoring jury instructions. More than once, we have successfully obtained modified form instructions by bringing to the court's attention authority that fleshes out an element in a way that is advantageous to our client's position.

It is well established that "[a] party is entitled to an instruction concerning his or her theory of the case if it is supported by law and has some foundation in the evidence." Jenkins v. Union Pac. R. Co., 22 F.3d 206, 210 (9th Cir. 1994), as amended (July 7, 1994). Instructions tailored to specific issues in your case are an opportunity for advocacy, as long as they are fair, adequately address the issue and properly state the law. For example, we represented defendants in a multimillion-dollar intellectual property case that turned on the jury's interpretation of the contractual phrase "at any time during my employment." We proposed an instruction directly targeting that disputed issue, which outlined the parties' positions and made clear what the jury would need to find to hold our client liable. The special instruction focused the jury's attention on the plaintiff's overreaching interpretation -- which the jury ultimately rejected.

Be Aware of Potential Appellate Issues

Crafting objections to your opponent's proposed instructions merits just as much attention as your proposed instructions. Review and distinguish the authorities they cite in support of their instructions, and be specific as to the grounds for your objections, as objections must be "sufficiently precise to bring into focus the precise nature of the alleged error" to avoid waiver on appeal. See Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1015 (9th Cir. 2007). Submit your objections in writing and on the record at the charging conference to ensure your objection is preserved for appeal.

Preemptive instructions incorporating rulings on the merits in pre-trial orders are particularly fertile grounds for appeal. Carefully review the orders and arguments in your pretrial motions to head off attempts to reargue or mischaracterize the court's prior rulings, particularly if substantial time has elapsed since the orders were issued. Again, ensure that your objections are preserved on the record to fend off any waiver argument on appeal.

Finally, review appellate decisions addressing jury instructions for the claims and defenses at issue in your case, to avoid pitfalls in drafting instructions and objections. Consider having appellate counsel review your instructions and objections as well for potential errors.

"Pre-Instruction" Is Key

Many successful trial lawyers endeavor to get the instructions and verdict forms to the jury before their closing arguments. An effective closing argument walks jurors through each instruction -- ideally, with a copy of the instruction at issue up on a screen as a visual aid so the jurors can follow along. This is one of your last opportunities to convey to jurors that what they think is more important than what you think about the case. Demonstratives that intersperse key evidence alongside the pertinent jury instructions are a great way to have the jury start to make connections and conclusions that can be the difference between winning and losing a case.

Complex legal language in each instruction should be translated into simple, easy-to-understand ideas. Then, highlight the evidence that supports each element of the claim or defense at issue, and explain how that evidence ties into your overarching case themes. Verdict forms should get the same methodical treatment as part of the closing argument. This approach ensures jurors have seen and understand each instruction and how it applies in your case, well before the instructions and verdict forms are formally read. Always remind the jury how to fill out a verdict form if they want your client to prevail. All too often, a jury can become confused or make a mistake, so show them the outcome you believe the evidence compels.