I clerked for a federal district judge for 2 years, and during that time I learned a lot. Mostly, I learned that lawyers have no idea how to persuade the court to rule in their favor. This category of posts will offer some tips for lawyers on how to deal with the court.
Today’s post deals with jury instructions. District court clerks have primary responsibility for creating jury instructions, and they receive little help from lawyers. Usually lawyers will submit reams of paper that look like printouts from an IRS mainframe computer. String cites abound, and when they do you can be sure that there are no “diamonds in the rough.”
If you want to make the law clerk happy, get a copy of the courts usual “general instructions” and don’t submit any of these instructions, unless you want some special change (by “general instructions” I’m talking about the rote stuff that gets read in every case, not the stuff that is specific to the legal issues in a particular case). If you do want a variation in the judge’s general instructions be prepared to offer a good reason; chances are you won’t have one.
When you submit proposed instructions on the substantive law, use the Pattern Instructions for your Circuit, unless there are no pattern instructions for the Circuit. If there are no pattern instructions for your Circuit, then you’ll have to guide the law clerk with a specific set of instructions that you create from scratch. Contrary to popular practice, this doesn’t mean you should just draft up your own Santa’s Wish List of Law in Your Favor and sprinkle some string cites below it. Santa won’t grant your wish, and neither will the law clerk. In fact, the law clerk will grow increasingly hostile as he or she discovers that each case you cited in your string cites is not exactly on point.
If you have to create jury instructions that aren’t in a “pattern book” you should look for a case where the law you are looking to have the court charge the jury with was discussed in a case involving a jury trial. I know this will shock a lot of lawyers, but just because something “is the law” it doesn’t automatically follow that the jury will receive an instruction in that law. Juries aren’t legal computing machines (and frankly neither are judges or other normal people). So judges aren’t going to just read law to the jury without a good reason. Your job? Supply good reasons.