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.
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My experience is that for a case of any level of above-average complexity, the pattern instructions for the elements of the case relating to the complexity are frequently erroneous. I’ve seen appalling pattern instructions that are internally inconsistent. In other instances, the pattern instructions are a round hole for which it would be both futile and a mistake to attempt to fit the square peg of the facts of the case. Other pattern instructions are needlessly complex. The whole area is a good subject for reform. I don’t doubt that Ernie saw some poorly drafted proposed instructions, but a clerk is not doing anyone any favors if he or she thinks pattern instructions are a cure-all.
I don’t want to be the first one to say it, but here goes.Suggested jury instructions are offered to see the record with error. In effect, it is to make the judge’s job harder by: 1) not waiving defenses; 2) leading the judge to give an incorrect instruction.
So, while it is all well and good to be persuasive, suggested jury instructions will probably never be a model of clarity.
(And yes, I clerked, too.)
There is no question that string citing irrelevent cases is pandemic in today’s world. Why use one button cite-checking on Lexis or Westlaw when you can just cut and paste from papers written twenty years ago?
Assuming that Ms. Elefant’s point about the reason for most reversals is true, then the burden of getting the instructions right is the judge’s.
Perhaps some of the attorneys were strategically setting up appellate arguments?
Ronin
Ernie, I enjoyed reading your comments aboutproposed jury instructions. Very rarely dowe get useful legal instructions fromcounsel.
Ernie: Thanks for the tip. I will tell you that as a solo practitioner, one of my gripes about jury instructions is that it is virtually impossible to find non-pattern instructions that have been used in similar cases. At a large firm, I’d imagine that there are databases and files with instructions from similar cases but in solo practice, we don’t always have that knowledge base. Sometimes, in research, you may run across a decision where an instruction is at issue so it is recited in the case, but other than that, there is no organized “repository” of proposed jury instructions that can be searched by subject and text. Consquently, you have lawyers spinning their wheels, drafting instructions from scratch and annoying law clerks with instructions that are not supported by authority.
The paucity of information available on jury instructions is especially troubling given that a court’s failure to give a proper instruction is probably one of the strongest grounds for appealing a jury verdict. I’ve handled a couple of appeals of adverse jury decisions – and the bulk of the cases that I found actually granting reversal were in those cases where the court gave an improper jury instruction (and counsel properly preserved the objection).