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Jury Instructions and Verdict Forms
Outline Note

I personally look at the jury instructions and verdict form as one of the most important aspects, if not the most important aspect, of the entire trial process. The reason for this is that it’s my experience that jurors generally will strictly apply the law as described in the jury instructions and reflected on the verdict form, even when it will result in a decision contrary to what the jurors would like to occur.

Thus, the first thing I do when considering whether to take a case is look at the jury instructions and the verdict form likely to be given to the jurors, and I decide whether I can win the case with the applicable instructions and verdict form.

I then have the anticipated instructions and verdict form guide my discovery process, and all aspects of my pre-trial and trial strategy work-up. I cannot overemphasize the importance of developing the theme of the case around the jury instructions and verdict form that likely will be given. I have seen numerous trials whereby the jury likely would have found for one side, but the jury instructions and verdict form led the jury to reach a contrary conclusion.

Moreover, when you develop your theme (and thus voir dire, opening, examinations and closing) around the jury instructions, your entire theme will be later emphasized in exponential proportions when the judge reads the jury instructions to the jurors at the end of the case. It’s amazing after closing to be sitting and listening to the judge read the jury instructions, and it sounds as if he basically is restating exactly what you have been telling and arguing before the jurors. This adds tremendous credibility to your case.

Standard Jury Instructions:

The purpose of jury instructions is to provide: (i) guidance to the jurors in regard to the issues to be decided by them when completing the verdict form, (ii) the law they should apply in reaching their decisions, (iii) the burden of proof they must apply in reaching their decisions, and (iv) whether the verdict must be unanimous or a super majority.

Courts and judges generally utilize standard jury instructions for most cases tried before them. Standard jury instructions are instructions that have been well researched and written by appointed committees consisting of respected judges and attorneys. Often these instructions approved by a governing body or even the state supreme court. Judges are well aware of these standard instructions, and generally utilize them for 80-90% of the instructions they give to the jurors.

Massachusetts does have recommended standard jury instructions, and they are very good. They also are very comprehensive. In fact, they even include applicable case law and other citations.

Attorneys always are permitted to submit standard, as well as non-standard jury instructions, for the judge to read to the jurors. The recommended instructions must be relevant to the issues to be decided by the jurors and must be supported by the evidence introduced at trial.

An attorney generally submits non-standard proposed instructions when the attorney believes there are important issues not covered by the standard instructions or believes that the standard instruction provides an incorrect statement of the law as applied to the specific facts of the case. In fact, in most jurisdictions, the judge is required to provide a requested jury instruction that properly reflects the law on an issue needing to be decided by the jurors.

Even when submitting standard instructions, an attorney should slightly modify them to make them read in a clear manner. I often make some minor modifications to standard instructions to make them more clear, and to flow in a more logical manner. In fact, it might be as simple as inserting the names of the parties where applicable as opposed to utilizing general terms such as “plaintiff” or “defendant.”

When preparing non-standard jury instructions, one of the first places an attorney should start is a thorough research of the applicable law, and the language utilized in written opinions. Next, the attorney should attempt to locate similar instructions that have been adopted by other courts or suggested in pattern jury instruction treatises.

Deciding on Case Specific Jury Instructions

I always prepare my suggested jury instructions and verdict form prior to the pretrial conference, and submit the same to opposing counsel. In fact, virtually all courts require that counsel submit proposed instructions and verdict forms as part of the pretrial memorandum. Because so much has to be done just prior to the pretrial conference, opposing counsel is generally rushed and often fails to place proper emphasis on instructions. Therefore, I find them very receptive to agreeing to my proposed instructions and verdict form, as long as it appears to be neutral, which I do make it appear. Remember, they appear neutral until such time as my theme begins developing during the trial, and I give my closing argument. It’s then, during the reading of the jury instructions, that opposing counsel wishes he had not agreed to them.

When preparing the instructions, I always try to determine those issues most beneficial and most harmful to my case and try to find a way to get helpful jury instructions on them. This especially is true for key issues in the case that I believe the jurors will focus on. I also like looking for any state, federal or local laws or regulations that the opposing side violated. Jurors are influenced by violations, or lack thereof, of laws and regulations that are applicable to the case. This is true of both the plaintiff and the defendant. ... Finally, I get the opposing side to stipulate to as many facts as possible, and I include them as part of an jury instruction.

Structure of Jury Instructions

It’s important that the jury instructions appear in the most concise, simplistic and clear language that can be utilized. Sentences should be short, simple and clear.

It’s important that the jury instructions appear in a logical and clear order. I try to make my jury instructions read in a narrative-type format. In fact, your instructions do not need to appear in the same order as the pattern jury instructions. You should place your instructions in whatever order makes the most sense and that is most clear.

Any legal terms or unfamiliar terms should be defined within the instructions. This especially is true for legal terms that also have an everyday meaning that differs from the legal term.

Final Instructions and Publication to Jurors

During the jury instruction conference, the judge will make her final decision on the jury instructions and verdict form to be published to the jurors. This conference always take place before closing argument, but in most cases this conference initially take place prior to trial, with continued discussions during the defendant’s case-in-chief. Under any event, the judge must inform counsel before closing argument as to which instructions will be utilized and how the verdict form will read. Some judges read instructions to the jurors before closing argument, but most wait until after closing argument.

In some courts the judge will send the jury instructions back with the jurors, and other times the judge will only read the instructions. Objections to Jury Instructions and Verdict Form--Fed. R. Civ. P. 51 A party may assign as error an error in an instruction or verdict actually given if that party made a proper objection, or a party may assign as error a failure to give an instruction or verdict form if that party made a proper request and objection.

As a general rule it’s best to object to jury instructions and verdict forms both before and after they are read, and certainly before such time as the jurors actually begin their deliberations. Also, make your objection very clear. State which instructions you are objecting to, and exactly how the instruction needs to be rephrased or substituted.

Special and General Verdicts—Fed. R. Civ. P. 49

The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact.

The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.

General verdict forms are much less used today than they were at one time. Generally, even in simple cases, the judge will want to use an interrogatory type verdict form so that the jurors can easily follow the questions they are supposed to answer.

Post-Verdict Actions:

Polling of the Jurors: Jurors generally are asked to be “polled” by the losing party. This is a process whereby the judge will ask each juror individually whether the verdict announced is the juror’s decision. Interviewing Jurors: You generally are not permitted to interview any jurors after the verdict. They are permitted to call you if they desire. However, in some states, the lawyer still might not ask them about the deliberation process.

Motions for JNOV, New Trial, Judgment, Attorneys Fees, Appeal: The date of the jury verdict and the entered judgment create several time limitations. You need to carefully review the rules of procedure and applicable statutes for the procedures controlling these issues.

© Martin Levin