Mistakes may lead to unfavorable outcome on appeal
You have spent months (or even years) preparing for a jury trial. You have crystallized your theories of liability or defense. Your witnesses are prepared. You have developed multiple avenues for convincing the trial court to admit all of your key non-testimonial evidence.
One item often left to the last minute is the body of jury instructions trial counsel will propose. Ideally, trial counsel will begin developing jury instructions early in the case. But this is not always practical or even possible as causes of action, and defenses to those causes of action, change as the case proceeds toward trial.
Whenever trial counsel turns to preparing jury instructions (and the sooner the better), be aware that this is an area fraught with peril, and mistakes may very well lead to an unfavorable outcome on appeal.
It might seem obvious, but it bears mentioning that the trial court has no duty to develop jury instructions independently. It is counsel’s duty to submit form or special jury instructions relevant to the theory of the case.
Trial counsel may develop multiple theories of liability or defense, and each may warrant a separate, specific instruction, or perhaps separate sets of instructions. One theory might itself involve several questions, each requiring its own specific jury instruction. Counsel should ensure that there are no contradictions between any of those instructions.
Generally, under California law, a party may challenge an erroneous jury instruction on appeal without objecting to that instruction at trial. Similarly, the law presumes a party has objected to the refusal to give a proposed instruction, and to the modification of a requested instruction.
But in some instances, trial counsel must take affirmative action in order to urge error on appeal. If the trial court gives a legally correct instruction and the instruction is too general for the state of the evidence, trial counsel must request an additional, more specific instruction that fits that evidence. Failure to do so forfeits the right to challenge the more general instruction on appeal.
The situation is even more unfortunate when trial counsel requests a jury instruction that later turns out to be too general for the state of the evidence. It will be very difficult for the requesting party to urge error arising from the general instruction. The Court of Appeal will most likely conclude that the requesting party invited the error and cannot challenge the general instruction on appeal.
The situation is different when the trial court gives a legally incorrect jury instruction. There is no need to object to that instruction or to propose a correct instruction to preserve the right to challenge the erroneous instruction on appeal. The Court of Appeal presumes that if the legally correct instruction had been given, the jury would have rendered a verdict in favor of the losing party on the issue on which the legally incorrect instruction was given. The Court of Appeal indulges this presumption even if the error was invited.
The bottom line:
Identify as soon as possible all approved jury instructions relevant to any theory of your case
Create and submit proposed special jury instructions that are specific to your theories and facts
Ensure no contradiction between proposed instructions unless necessary to explain alternative theories of your case
Don’t risk jeopardizing your chances on appeal with inadequate jury instructions.