The Honorable Paula Brownhill, Clatsop County Circuit Court
Appropriate jury instructions can help litigators win trials. All too often, however, lawyers wait too late to submit proposed instructions, do not consider how the instructions can help jurors, and do not tell jurors what the instructions mean.
Here are six suggestions to help you win your case with jury instructions.
- Start work on proposed instructions early in the case.
As you develop your theory of the case and your trial strategy, figure out which instructions will be most helpful. The charge conference during trial with the judge and opposing counsel is too late to start thinking about jury instructions. - Tailor instructions to your theory of the case.
The law forms the foundation for your trial strategy. You must know the law and advocate for jury instructions that apply to your claims or defenses and your theory of the case. It is powerful to link your opening statement to your closing argument and weave the law, with reference to the judge’s instructions, into your closing argument. - Request special instructions when they will help jurors understand the law.
You are not limited to uniform instructions. Draft special instructions when they will be helpful. Remember to correctly state the law, and be sure your requested instructions are supported by the pleadings and the evidence. - Keep instructions short, simple, and easy for a lay person to understand.
Many of Oregon’s uniform instructions are hard to understand, even for lawyers. Jurors with no legal training often have no idea what many instructions mean. Try rewriting instructions in simple language. The Judicial Council of California approved plain English jury instructions years ago in an effort to help jurors understand the law and apply it correctly. Borrow from California if you want examples of easy-to-understand instructions. - File requested instructions with the court and provide a CD to the judge.
In every jury trial, I give jurors written jury instructions to take with them to the jury room. Unless the judge has a program to print the instructions (and I do not), it takes time to prepare the jury’s version. File your requested instructions at least 24 hours before trial (earlier if required by Supplemental Local Rules), and offer the judge a disc with your requested instructions in Word format. - Explain instructions during closing argument.
The best trial lawyers explain complicated legal principles to jurors during closing argument. Do not read instructions to jurors; paraphrase and explain. For example, in a criminal trial, give jurors examples that show the difference between ‘intentional’ and ‘knowingly’ in terms jurors can understand. If you persuade the judge to give your proposed instructions but jurors don’t understand them, you have not gained much. - Keep in mind these general principles:
- As a general rule, a party in a civil action is entitled to jury instructions on its theory of the case if the requested instructions correctly state the law, are based on the pleadings, and are supported by evidence. Denton v. Arnstein, 197 Or 28 (1952); Cline v. Bush, 152 Or 63, 66-67 (1935).
- Requested instructions must be correct in all respects. Hall v. The May Dept. Stores Co., 292 Or 131 (1981); Beglau v. Albertus, 272 Or 170, 179 (1975).
- There is no error by the trial court if the substance of the requested jury instruction, even if correct, is covered by other jury instructions given by the trial court. Kabil Developments Corp. v. Mignot, 279 Or 151, 158-59 (1977); State v. Pedersen, 242 Or App 305 (2011).