Checklist for Great Jury Instructions

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.
  1. ___ Review form instructions before drafting instructions to see whether any of them fit the issues in the case. Make sure  to review recent revisions.
  2. ___ Prepare instructions well before trial so that you can focus your attention on them and avoid drafting last-minute instructions.
  3. ___ 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.
  4. ___Determine who bears the burden of proof on each issue or element of each claim and affirmative defense, and prepare burden of proof instructions.
  5. ___ 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.
  6. ___ Prepare a list of both form and  originally drafted instructions you plan to give in the case and compare this list with the substantive issues involved. Make sure all instructions necessary to cover the substantive issues are ready to submit.
  7. ___ Organize all proposed instructions into a sequence that makes sense for your case rather than ordering them by number.
  8. ___ Review all instructions to make sure the authority cited is accurate.
  9. ___ Remove repetitive or cumulative instructions that do not accurately recite controlling law.
  10. ___ Proofread and edit all instructions for clarity and conciseness.
  11. ___ When certain instructions are essential to your case, be prepared to offer alternative instructions if the trial judge refuses your initial proposal. Remember you need make a record on appeal because the court of appeal will ask you what instruction you offered as an alternative.
Now, let me briefly address voir dire. One of my favorite ways to evaluate the jury is to give them opposing ideas and let them know that there is no right or wrong answer. For example, this is the way I start to offer ideas on 


It is natural for folks to have opinions about the judicial system, lawyers, Plaintiffs, defendants, corporations and trucking companies:

       There is NO WRONG Opinion
       We all just want to learn something about your opinions/attitudes to evaluate if you are the best juror for this case. For all of these questions, remember, there are no right wrong answers; we just need to know how you really feel.
Then I begin to outline specific questions, such as:
                 How many of you have been involved in the judicial system in some way? (Witness at  trial, jury member, victim etc.)
                 How did your experience make your feel   about the system in general?
                 What was your specific involvement in the  system? (Victim etc.)
                 Do you believe that experience will influence  how you decide the results of this case?

Believe me, on voir dire, this is just the very beginning. I have much more, but I don’t want the “enemy” to see my secrets. I hope this information is of some assistance. If you want more information on jury instructions or voir dire specific to the trucking industry, give me a call or send me an e-mail. I am glad to help fellow defense lawyers defending the trucking and insurance industries.

Mark Perkins

Perkins & Associates, LLC

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