Trial Book

OPTIMUM USE OF JURY INSTRUCTIONS DURING TRIAL

From Voir Dire to Closing Argments

Hon. William J. Haddad (Ret.)

An English lady once asked The Lord Chief Justice: “What is necessary in order to win a case in court?”

The Lord Chief Justice Replied:

“Madam…
First , you need a Good Case,
                                                Then you need Good Evidence,
                                                Then you need Good Witnesses,
                                                Then you need a Good Judge,
                                                Then you need a Good Jury,

And, finally you need Good Luck!”

In going to trial, we may know that we have a “good case” and “good evidence”. However, what we cannot know are the human factors which no actuary, adjuster, scientist, computer expert, or jury consultant can predict:
            1.         How will the attorneys perform at trial?
            2.         What kind of judge will be assigned to the case?
            3.         How will lay witnesses come off in real trial conditions?
            4.         How will the experts perform on cross examination?
            5.         And, What kind of jurors will end up on the jury?

These are “human factors” over which lawyers cannot easily predict or control. However, we can mostly predict what will be “the law of the case” by careful preparation and familiarity with the jury instructions.

I. The Importance of Jury Instructions to the Attorney, the Judge and the Jury

Every case has points of law, borne in the jury instructions, which are critical to winning the case. Trial attorneys who wait until rebuttal argument to tackle those issues usually lose the case. Rather, the trial practitioner should begin to indoctrinate the jury at voir dire, and continue to drive home the legal issues in opening statement, in witness examination, and again in closing argument. By the time the judge reads instructions before deliberations, the jury will have been indoctrinated on the points of law (and the language) which are important in winning your case.

1. Pre-Trial Preparation – Identify the Law of the Case

To the trial attorney, early identification of key jury instructions is an exercise which helps focus attention on ultimate issues at trial. Therefore, a draft of jury instructions should be prepared months before the case is set for trial. Then, from time to time, the draft instructions should be reviewed and modified all the way up to the final instruction conference.

By identifying key instructions early on, one has the time to develop strategies to deal with these critical legal issues at trial. For example, how would a plaintiff in a medical malpractice case use the law to thwart a popular defense of “sole proximate cause”? This defense is articulated in paragraph two of I.P.I. 12.04 and 12.05 which pertinently read:

            “if you decide that the sole proximate cause of injury to the plaintiff was the
             conduct of  some person” [12.04] or “something” [12.05] other than the
             defendant, then your verdict  should be for the defendant.”
[Tip: This defense is discussed in another article in this website “The Empty Chair Defense”.]

Therefore, in our example we see that the mere exercise of making an early selection of jury instructions may lead us to the early identification of certain legal defenses such as “sole proximate cause”. Furthermore, it would likely reveal jury instructions which squarely address this defense, namely I.P.I. 15.01— the “Definition of Proximate Cause” which reads:

“When I use the expression ‘proximate cause,’ I mean a cause that, in the natural or
ordinary course of events, produced the plaintiff’s injury. [It need not be the only
cause, nor the last or nearest cause. It is sufficient if it combines with another
cause resulting in the injury.”

The IPI 15.01 instruction is the linchpin in defeating the defense of “sole proximate cause”. Therefore, it is important to indoctrinate the jury on their duty to follow the law of causation in general. Then follow-up during trial with specific references to “proximate cause” or “a cause” of injuries.

2. Voir Dire – “Do I have your promise”

Critical issues of law which are favorably covered in the instructions should be showcased throughout the trial, from voir dire to closing agreement. Granted, litigators may be limited in reading or arguing instructions at various times, but they can “educate” the jury in other ways to acquaint them with their theory of the “law of the case”.

Jury selection is an excellent time to begin the process of educating the jury on various themes in a case. In our example lawyers might off-handedly educate the jurors about “the law of causation”. The goal here is to get an early commitment that the jury will follow the law, particularly as to our example, the law in the I.P.I. 15.01 instruction. Why not get this issue out early?

“Folks, we believe the evidence will show [and it is our burden under the law, as
the judge will later instruct you] that Dr. Smith’s negligence was “a proximate
cause” of death of Baby Doe.

“We accept and welcome our burden.

“Now, you will take an oath to follow the law. Do I have your promise that you
will follow the law of negligence—the law of damages—and the law of causation
as the judge will instruct later in this case?

[TIP on jury selection: Some believe that the goal of voir dire is to get information from the jury with so-called “open ended questions”. Not Necessarily! Sometimes trial lawyers know right away they like a juror and want them. Rather than ask open-ended questions which may expose their favorable proclivities, ask closed-end, perfunctory questions and move on. On the other hand, if you find a person who you know you do not like, then ask open -ended questions with lots of “whys” and “hows” in hopes they will trip up and give you a challenge for cause, saving your precious peremptory challenges.]

3. Opening Statement – “The evidence will show”

During opening statement keep sounding the theme of, in our example, the law of causation as given in the instructions, avoiding arguing or reading the actual instruction…

        “We believe that the evidence will show that Dr. Smith’s negligence was “a cause”
         of the death of Baby Doe. It’s our duty to prove causation by a preponderance
         of evidence. And it will be your duty to follow what we call the Law of Causation
         in this case.”

“There are always other factors and causes, but our duty and the evidence will
show, that the delay of treatment by Dr. Smith was A CAUSE or contributing
factor in the death of Baby Doe.”
        [Tip: If a particular instruction is pivotal to the outcome of the case, it is within the
         discretion of the court to read certain instructions before opening statement. See
         Sup. C. Rule 239(d)(ii) which states that the judge “may orally instruct the jury…
         on substantive law applicable to the case, including but not limited to the elements
         of the claim or affirmative defenses.”]

4. Examination of Witnesses – “Was Dr. Smith’s conduct ‘a cause’”

During the direct examination litigators can continue to educate jurors on causation by questioning the treating doctors and retained experts, choosing the certain words seen in the instructions. For example:

“Dr. Jones in your expert opinion based upon a reasonable degree of medical
certainly is it likely that Dr. Smith’s conduct was “a [proximate] cause”
[contributing cause] of the death of Baby Doe?”

5. Cross-Examination of Witnesses – “Wasn’t Dr. Smith’s conduct ‘a cause’?

During cross examination of defense experts, some lawyers employ a rhetorical question to expose bias by reminding the jury of the paid expert’s conspicuous omissions of the causative conduct of the defendant. For example, where the retained expert identifies sole causation due to a pre-existing condition (I.P.I 12.05) or the treatment by a non-party physician, the plaintiff can still rhetorically remind the jury of the “law of causation”:

“Doctor, you were paid to render an opinion naming all of these other,
multiple causes contributing to the death of Baby Doe?

Doctor, how about the Dr. Smith’s delay in treatment? Wasn’t this even
one of the causes which contributed to Baby Doe’s illness
leading to her death?”

6. Closing Argument – Reminder of Promise to follow the law

In our example, closing argument presents the final opportunity to remind the jury of its promise to follow the law, as stated in IPI 15.01:

“The judge will instruct you that we are only required to show you, by a
preponderance of evidence—that it was more likely true than not true,
that the delayed radiology report was “a cause” of the death of Baby Doe.
It need not be the only cause, nor the last or nearest cause….it can combine
with other causes of death.”

Displaying the instruction on a foam board or through power point video with highlights of important terminology is highly effective. And always remind the jury of their promise to follow the “law of causation” in this case, regardless if they agree with it. “It is our duty to follow the law, even if we disagree with it”.

On the other hand, defense attorneys should use of the jury instructions in the same manner to show that the plaintiff has failed to prove essential elements of the cause of action. This, again, is an educational process which begins at voir dire.

7. Judge’s Reading of Instructions

The final and confirming moment of indoctrination of the legal issue (here causation) is in the reading of the instructions which the jury takes with them to deliberations. As stated at the outset, every trial has important issues of law gleaned from the instructions. By tackling those issues “early and often” the trial lawyer can indoctrinate the jury about the “law of the case” as reiterated by the judge who, under our example, will proceed to read the instruction on proximate cause, as being “a cause”. Just like you said!

* * * * *

II. DO’s and DON’T’s of Presenting Jury Instructions to the Judge

DO tender a “draft” of your instructions in advance of trial.
1. This educates the judge about the “Law of the Case”
2. But make it clear this is your draft and that final instructions will be presented at the instruction conference after completion of evidence.
DO ask the judge at the outset of trial when the instruction conference will be held. It is important to know exactly when you will have the final opportunity to supplement your instructions. Attorneys often wait for the final conference to present their strategic instructions, special interrogatories, and amendments to the pleadings to comport to added issues instructions under I.P.I 20.01.
DO have cases to support your request for important instructions, especially special interrogatories and comparative negligence fact patterns.
DO have a disc of your instructions with a printer available for changes.
DO have your IPI book on hand for access to committee comments.
DON’T be unprepared. Have marked instruction in chronological order for the judge and the parties, and a clean set for the jury.
DON’T submit unnumbered instructions. The IPI number are not enough.
DON’T inundate the judge with non-standard instructions. Even if they are based upon verbatim case law, there should be some actual proof that they were actually used in a trial. (Exception: unique cases where standard instructions do notexist)
DON’T bring last minute instructions on the day of closing argument.
DON’T go to closing argument without first getting a ruling on every instruction.
DON’T go to closing argument without being sure you have made all of the modifications and corrections in the instructions.

The importance of properly prepared jury instructions cannot be underestimated. Instructions should be modified wherever possible to make them simple and easy to understand for the jury, nd also the judge. Juries prefer instructions which are easy to understand and logically organized.

Simple instructions make for quick verdicts.

Complicated instructions make for mistrials.