In the past, I have blogged about and shared "standard voir dire" questions, but the following is to assist with instructions given to the jury. I am not presenting actual suggestions of what should be in the instructions because the law will vary as to the facts; however, it's extremely important to consider the jury instructions even before discovery begins so that you can focus the case in the direction you want it end.
Similarly, I always advise the attorneys in my office to review winning cases on summary judgment or at trial so we can emulate those cases as much as possible. Although I may be considered a "seasoned" trial attorney having practiced law over 25 years, I continue to learn from excellent attorneys and experts in trial analysis, such as Dr. Paula Gabier, in preparing the themes based on applicable jury instructions.
The following is revised from a checklist by Julie Brook, Esq. to help with effective jury instructions in every case. Often times, attorneys will use only the "form instructions" because it's easy, but that is short-sighted method. We're not paid to be clerks who can copy and paste. We are paid to evaluate, analyze and apply legal principles to factual issues.
The following is just a checklist on how to analyze and ensure you do your best, but it's nothing more than a tool. What sets you apart from the average lawyer is your ability to make this checklist come to life in a specific case.
- ___ Review form instructions before drafting instructions to see whether any of them fit the issues in the case. Make sure to review recent revisions.
- ___ Prepare instructions well before trial so that you can focus your attention on them and avoid drafting last-minute instructions.
- ___ Review pleadings and discovery before drafting instructions to determine what the issues are. Reread the complaint, answer, any cross-complaints and answers, the pretrial conference order (if one was entered), answers to all contention interrogatories, all requests for admission, and any orders on any motions to see if any of the pleaded issues have been removed from the case.
- ___Determine who bears the burden of proof on each issue or element of each claim and affirmative defense, and prepare burden of proof instructions.
- ___ When drafting original instructions, use simple language, cite authority accurately, and read the instructions to non attorneys to make sure the jurors can understand them.
