Object to Jury Instructions. No, Seriously. OBJECT!

Lawyers love to object.  They object at depositions.  They object to questions during hearings.  But you know what?  For some strange reason, these same lawyers who love making stupid objections are often totally clueless about when objections really count for all the marbles:  Jury instructions.

You win or lose cases on jury instructions.  When you get a new case, when you’re mapping out claims and defenses, you have to think about that through the lens of jury instructions.  Jury instructions are ultimately broken down into claims and then elements of those claims.  One of the first things I do in every new case – whether plaintiff or defendant – is review the applicable jury instructions for every single claim.  I use that as a template on which to build my order of proof.

Jury instructions for many claims and defenses are standard.  You have a claim for breach of fiduciary duty.  There’s a standard jury instruction for that and its readily available to any lawyer who wants it.  You have an affirmative defense for unilateral mistake of fact?  Again, there’s a standard jury instruction for that.  Same thing.  But invariably, in our line of work (non-compete, trade secret, trademark, antitrust litigation), we often need unique jury instructions.  Either the standard jury instruction needs revised to fit the facts, or, we need to draft a completely new jury instruction that we build from the case law.

We have a rule in my firm:  When it comes to jury instructions, I require at least three attorneys to review each instruction.  I’m one of those three.  That goes for the instructions we draft and propose.  That also goes for jury instructions that the other side proposes.  Why am I such a psycho when it comes to jury instructions? Because that’s all the marbles.

At the close of evidence, the court will read the jury the jury instructions.  How do you reach those jury instructions?  The parties agree on some of the instructions.  For other instructions, where the parties disagree, each will submit their own version.  Often, in the middle of trial, before the case goes to the jury, the judge will hold a session with the lawyers to hash out final details on disputed jury instructions.  Of course, lawyers who actually try cases know this!

I’m not joking:  You’ll select the jury on day one, do openings and then get into evidence.  Say you’ll have two days of evidence.  Then you’ll break and there will be a session where – on the fly – the Court expects the lawyers to resolve jury instruction and verdict form disputes.  You will be standing in court and the judge will say, “Alright, here’s a compromise instruction.  My clerk is going hand out copies.  It’s going to say X.  Can we all agree to this?” 

That should raise red flags immediately.  Not only do you run the risk of waiving an objection to a jury instruction, but you also run the risk of actually AGREEING to a bogus instruction.  You cannot appeal a based on a bogus jury instruction when you AGREED to that instruction.  Invited error.  You are toast on appeal.

And once the case goes to the jury and the jury renders a verdict, good luck getting that verdict overturned.  If there’s a jury verdict in place, any reviewing court will basically look at it like this:  Unless no reasonable juror could have possibly made that ruling based on those facts, then we will let the verdict stand.  That’s a heck of a burden to overcome.  That’s not the court working through the issues and making its own decision.  In fact, courts reviewing jury verdicts routinely say:  As a court, we wouldn’t have ruled this way, but the jury did.  And we can’t say definitively that no reasonable juror could have made that finding, so we’re going to let it stand.

Bottom line:  Jury instructions matter. Seriously. They are all the marbles. You need to get a handle on the relevant universe of jury instructions early on in your case. And as you approach trial, you need to anticipate potential problems and disputes related to those instructions.  And if you ever find yourself in a spur of the moment session with the judge and opposing counsel hashing out the final details of disputed jury instructions, I’ll give you some advice:  Object.  Be loud.  Be clear.  Be long-winded.  Spell out on the record that you object to the jury instruction; why it’s inappropriate; why your proffered instruction was correct; that you insist on the instruction you originally proposed. If the judge cuts you off, say, “Your honor, respectfully, I request the opportunity to fully state my objection to this jury instruction on the record so as to preserve the issue fully for appeal.”  If that ever happens, no judge would deny you the right to state your objection on the record. 

This is like a public service announcement of lawyers.  The more you know!


Jonathan Pollard is a competition lawyer based in Fort Lauderdale, Florida.  His office can be reached at 954-332-2380.