Overview
The jury charge.
Perhaps no other single component of trial practice presents such a significant disconnect between how litigators talk about it and how they treat it in practice.
The jury charge is the combination of the court’s explanation to the jury of the law governing the case or the court’s identification and the factual questions the jurors must answer to render a verdict. Given that, most trial lawyers understand, at an intellectual level at least, how important the jury charge is. Indeed, because winning on the underlying law and on the questions posed to the jury often means winning the trial, few litigators would dispute that the jury charge matters. A lot.
And yet. . .
In practice, some trial lawyers treat the jury charge as little more than a check-the-box afterthought. And even conscientious attorneys occasionally allow the urgency of other concerns to override the always important, but frequently less urgent, task of drafting, arguing, and negotiating the jury charge. As a result, even well-intentioned and diligent lawyers sometimes end up leaving real engagement with the jury charge to the 11th hour. This is a mistake. Whether you call it a cause of action outline, a proof chart, or an infant jury charge, the legal elements at issue are crucial at every stage of a case. To obtain the best possible client outcomes, litigators must always reason backward from trial, from Day One. Lawyers must also understand and internalize the critical role the jury charge plays in protecting favorable verdicts or challenging losses on appeal. Taken together, these realities mean that every case must have the jury charge as its constant companion, from inception to submission.
But what does this mean in practice? The following key principles can help trial lawyers integrate the jury charge into the cradle-to-grave life cycle of every jury matter:
- Update Early and Often. Begin each case by building a draft jury charge, updating it as the matter evolves.
- Know Your Court. Virtually every court has its own approach to jury charges; figure yours out quickly.
- Know Your Audience(s). Jury charges must both speak clearly and effectively to the jury and resonate well with trial and appellate courts.
- Know Yourself. While some trial lawyers handle jury charges as effectively as they examine witnesses or deliver closing arguments, many do not—especially as cases wrap up. Get help if you need it.
- Integrate, Integrate, Integrate. Weave the jury charge into every element of your case at trial.
Early and Often
Because the jury charge contains both the relevant law governing the dispute and the interrogatories the jury will answer, it is effectively a roadmap for the entire case. And because the wonders of modern GPS technology have no close analogue in civil litigation, old-school rules apply: the roadmap is far more useful when developed at the beginning of the trip and consulted regularly throughout. Because both the evidence lawyers present and the narratives they craft at trial must follow that roadmap as closely as possible, the best practice is to begin working on the jury charge at the outset of litigation.
First, drafting the jury charge early forces lawyers out of reaction mode and into thinking mode; given the myriad ways litigation encourages lawyers to prioritize the urgent over the important, taking time to draft the jury charge early helps litigators and their teams build a long-term strategic mindset.
Second, both the jury charge itself and the strategic mindset it fosters are enormously helpful in developing and sticking to litigation priorities in the heat of pre-trial battles. For example, a well-drafted jury charge helps lawyers identify and obtain the most critical evidence in the case in discovery. Relatedly, and perhaps ironically, a well-crafted jury charge also informs dispositive motions practice by encouraging lawyers to marshal evidence (or to identify the lack of evidence) tied closely to the elements and the law.
“Often” also matters because cases evolve over time. Consulting the roadmap during a journey keeps us on-course, but sometimes the route—or even the final destination—must change in response to facts on the ground or changes in the legal environment. In that situation, it would be as much a mistake to stick with the original roadmap as it would be to abandon the roadmap entirely.
Start the jury charge early. Consult it frequently to stay on-course. Change it accordingly as the case evolves.
Know Your Court
Virtually every court has its own approach to jury charges. It is critical to learn as much as possible about your court’s approach as early as possible. Some courts, for example, rely heavily on the parties to propose competing charges and generally treat competing charges as providing a menu of options from which to choose (or deviate). Other courts lean heavily on model or pattern jury instructions, with strong presumptions that the pattern charge should apply absent extraordinary circumstances. Moreover, courts often differ in how they handle charge conferences, and even individual judges within the same courthouse sometimes handle the jury charge very differently.
Court-specific and jurisdiction-specific research is key. At the outset, identify any governing rules or statutes. Then collect any pattern or model jury charges that might be useful, starting with in-jurisdiction materials but potentially expanding to other jurisdictions in appropriate cases. If the court has tried a similar case recently, get a copy of the charge used in that matter. Where available, use docket research tools to identify patterns and practices in earlier cases. Research appellate cases challenging that court's jury charges. Ask around. In some cases, it may even be worth sending someone to observe the court in action in a charge conference.
Just as starting the jury charge early pays dividends throughout the case, so does knowing your court. Conducting this research at the outset allows litigators to shape their cases around judicial preferences and practices, while also developing strategic advantages that opposing counsel will find difficult to overcome.
Know Your Audience(s)
Every jury charge ultimately has at least three audiences:
- The Trial Judge. Competing jury charges must speak effectively to the trial judge, which requires that they both anticipate and respond to judicial preferences and idiosyncrasies, while persuading to the judge that they fairly represent and clearly articulate the governing law and relevant questions to the jury (or, more cynically, that they are unlikely to result in reversal if challenged on appeal.)
- The Jury. The final jury instructions must speak to the jury reading the instructions and answering the questions.
- Appellate Courts. Finally, the charge must communicate effectively with any appellate court later called upon to address challenges to the charge.
Writing for three different audiences can sound daunting, but a few guiding principles help simplify the task. First and foremost, clarity wins. Use plain language instead of legalese. Avoid passive voice and complex syntax. Use short declarative sentences. Carefully and clearly define key concepts; don’t assume the jury can figure out what "proximate cause" means from context.
Relatedly, write logically. Organize jury instructions carefully, making sure that they fit together to form a coherent whole. Start with broad and generic instructions and work your way down to the specific.
In addition, good jury charges state the law accurately and are framed neutrally. Even as an advocate seeking a particular result, it is critical to avoid any framing that suggests a winner. Similarly, pick your battles carefully when deciding where to push. If a particular pattern of jury instruction is used in virtually all similar cases in your court, that court is exceedingly unlikely to deviate from that instruction, no matter how much you may dislike it. It may be better to save your powder—and your credibility—for other important instructions where the law is less clear-cut.
It is also important—and a potential opportunity for subtle advocacy—to tailor your jury charge to your specific case. At minimum, make certain that your proposed jury charge addresses all specific claims, defenses, and evidence, and that it contains nothing that shouldn’t be there. In addition, proper customization helps persuade the court that the jury charge you have proposed is essentially a turnkey operation, so it is generally worthwhile to exchange the generic for the specific (e.g., exchange "Defendant" for "XYZ Corporation"), with an eye toward tailoring that will help the jury follow along.
Finally, test your jury instructions as submission draws near. Read them aloud. Ask colleagues unfamiliar with the case—ideally some non-lawyer staff members as well—to provide feedback. If the instructions are confusing in any way, rewrite.
Know Yourself
It takes years to master basic trial skills. And for understandable reasons, most lawyers focus their attention on the traditional "stand-up" trial skills: witness examination and argument. Especially early in their careers, many trial attorneys simply lack the bandwidth to master jury charges as well.
Accordingly, lawyers should get help if they need it, and they should be unflinchingly realistic and self-aware about whether they need it or not.
Sometimes this means teaming up with an issues and appeals lawyer before trial, both to manage error preservation during trial and to ensure that someone with an appellate mindset is focused on the jury charge while the lead trial lawyer focuses on examining witnesses, connecting with the jury, and preparing opening statements and closing arguments. It is sometimes best to allow this specialist to argue the charge as well, both to reduce the lead lawyer’s load before closing arguments, and to provide additional heft to the legal arguments supporting your version of the charge over opposing counsel’s.
Other times, it may make sense to task an existing trial team member with this job; however, this team member must both have the bandwidth during trial to focus on the jury charge and have enough experience to do a good job. In some ways, the jury charge is in the trial but not of the trial. It is thus critically important that whoever is managing the jury charge have the time and ability to straddle that line effectively, striking the right balance between the current task (obtaining a favorable jury verdict) and the long-term goal (preserving that verdict or challenging an unfavorable outcome on appeal).
Integrate, Integrate, Integrate.
In addition to integrating the jury charge into the pretrial phase of the case from the outset, it is also important that trial lawyers integrate the charge into the trial itself. This is not always easy; the court will not typically settle on a final jury charge until all the evidence is in, and it is potentially devastating to a lawyer’s credibility to promise the jury during opening statements that they will see something in the jury charge only to have the court reject the relevant instruction or interrogatory at the charge conference.
At the same time, however, integrating the jury charge into the trial is critical. Juries in complex cases are typically at sea for much of the trial and are looking for life preservers they can cling to as they confront information overload. The jury charge can help provide those life preservers.
Even opening statements should incorporate as much of the likely jury charge as possible, while simultaneously avoiding overpromising. And closing arguments—almost always delivered after the jury charge is fully baked—should usually be built deliberately around the jury charge. It is also important to weave the jury charge into witness examination. Lawyers cannot do so explicitly, of course, but they can and should craft questions that mirror or preview the likely language of the charge. All else equal, it is far easier at closing to ask the jury to recall a specific question and answer that directly tracked the jury charge than to explain why a more generic question and response support the finding you need. A clean record of questions and answers that closely track the jury charge is also very helpful on appeal.
The jury charge is a critical but often underappreciated component of every jury case—even those that never make it to trial. Work on it early. Reference and update it often. Write it clearly for your specific trial court, for the jury, and for an appellate audience. Get help if you need it. And integrate it into every aspect of the trial.
