The trial is over, but don’t let down your guard yet: never underestimate the importance of the jury instructions.
A prejudicial error in jury instructions can mean a new trial or a reversal of judgment. CCP §475. A model from the TV show The Price if Right learned this the hard way when she saw her $8.5 million judgment reversed because the jury instruction was wrong.
Here’s a checklist to help you draft effective jury instructions in every case:
1. ___ Review CACI, BAJI, and other form instructions before drafting instructions to see whether any of them fit the issues in the case. Make sure to check for recent revisions of CACI, BAJI, or other form instructions in the pocket part.
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. ___ Ascertain who bears the burden of proof on each issue or element of each claim and affirmative defense, and prepare burden of proof instructions. See CACI 200. See also BAJI 2.60.
5. ___ When drafting original instructions, use simple language, cite authority accurately, and read the instructions to nonattorneys to make sure the jurors can understand them.
6. ___ Prepare a list of CACI, BAJI, 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 instructions that are repetitive or cumulative and 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. This is critical on appeal because the court of appeal will ask you what instruction you offered as an alternative.
To get the details on everything in this checklist, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 20. Get Judicial Council approved jury instructions from CEB in California Civil Jury Instructions (CACI) and California Criminal Jury Instructions (CALCRIM). For those who practice criminal law, check out Mandatory Criminal Jury Instructions Handbook from CEB and CJER.