Episode 19. Jury Instructions

In this episode of Coverage Counsel Is in, Robert Sallander discusses the importance of drafting jury instructions at the beginning of a case, and using them as a checklist for designing and implementing your litigation plan for maximum efficiency and effectiveness.

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Transcript

Hello, everyone. Welcome back to Coverage Counsel is In. This week,

I want to talk about jury instructions. But first, over the weekend,

I learned that a prominent Southern California law firm has made Coverage Counsel is

In podcast required listening for its coverage department. So hello to all of you

attorneys who are listening, and of course everyone, if you have topics you would

like me to cover or suggestions for the podcast, I would love to hear from you

about them so that I can make this relevant to issues that matter most to you.

Now turning to jury instructions, this comes up for me For a couple of reasons,

but the main one is that about a week ago I received a telephone call from a

claims professional in the Midwest. She and her reinsurer were concerned about whether

the defense counsel that they had hired for a class action lawsuit was properly

focused. It was an area of law that I have had some success in,

in defending cases, and they wanted to pick my brain about how to make their,

their approach, their defense more cost -effective and efficient.

The first question that I asked the claims professional is whether the attorney had

provided an initial case analysis based on the likely jury instructions that were

going to be used in the case. Her answer was no. This got me to thinking that I

always do that. All my initial case analyses are based on the jury instructions that

relate to the causes of action. I got into this habit back in law school.

I had several professors independently talk in their classes about how to start every

case by drafting jury instructions.

You're not going to have the final set of jury instructions at the beginning of the

case. However, you need to know something about the case, something about the law

that's going to apply to the issues in the case to help you frame your

investigation, your discovery, your defenses. If you don't start with jury

instructions, you're kind of running in the blind. Now that having been said,

There are a lot of cases where the jury instructions are just the same and

particularly in routine defense cases The attorneys probably already have jury

instructions in their head and think they don't need to sit down and Chart them out

at the beginning of the case

In my opinion, that's a mistake. The reason it's a mistake is the jury instructions

are there to help you focus. And even though you may think that the same jury

instructions are going to apply, take, for example, an automobile negligence case.

The negligence instructions are going to be likely the same.

But there are different facts and different circumstances for every case. And just

going over the jury instructions is a good way to help you see the differences and

the nuances in the case at hand. So in coverage cases,

you'll do a coverage analysis. In bad faith cases, you'll do the coverage analysis

plus the claims handling and related analyses.

And for example, in California, we have form jury instructions that sometimes apply

to those cases. There is no reason that you can't take those jury instructions and

put them into an initial case analysis, and then review the facts that you have

around the issues set forth in the initial case analysis jury instructions.

Like I said, the jury instructions will change. They will be refined over time.

The court may not give them exactly as you have written them down, but the

substance will be there. So it's important,

I think, to start your case knowing what the jury instructions will be.

It's one of the seven habits of highly effective people to begin with the end in

mind. So You might as well start the case, write the jury instructions,

list the facts, or discuss the facts that deal with each element that the plaintiff

has to prove, or each element of the defense that the defendant is going to have

to prove. And then if you don't have full facts, or if you need to investigate or

do discovery you've got a blueprint to guide you rather than doing the discovery and

as a as a true fishing expedition where you don't know what's out there you don't

know what you need you don't know what's going on you will know what you need

because you know here's the plaintiff's burden of proof. They need to prove this

issue. Then you look at the law on that issue, what are the cases said about

proving that issue, and you go directly for those facts. In a way it's like

shooting with a rifle rather than a shotgun. You're much more focused.

Now I know that the response to that from some people is going to be,

well, we don't want to miss anything. Well, again, I think if you're focused on the

jury instructions and developing the facts, you're not going to miss anything because

you're going to start to see the nuances in how the specific case may differ from

other cases that you've had or how the circumstances of this case don't quite fit

into the legal structure for the cause of action.

You don't miss things that way because you're then going to investigate them by

deposition, by interrogatory, by request for admission. So that's my suggestion that

you start each case with an initial case analysis that is drafted around the

structure of the jury instructions for the particular causes of action that you have.

So now going back to my friend that called wanting a little help in directing her

defense counsel. What we started with was identifying the law of that jurisdiction.

It was a Midwestern state where I don't practice. So that lawyer needed to say,

"Okay, here are the elements of the causes of action. Here are the defenses that

I've identified. Here's what the plaintiff has to prove the elements of her cause of

action or causes of action, here are the facts that I have to prove the elements

of my defense. And then it turned out that in that case the appropriate and most

effective way to start organizing those facts and developing them and pairing down

the class action was to create a chronology. I'll talk about the importance of

chronologies in a later episode of Coverage Council is in, but the point of raising

it in this discussion is just to say it allowed us to come up with a plan so

that the Defense Council was directed efficient, effective and able to really get

control of the defense of a fairly large case. I want to make one last point about

the jury instructions. The analogy here is to what pilots do in aviation.

Some of you may well be aware the pilots are driven by checklists.

They memorize checklists, they have written checklists,

and they follow those checklists through each phase of flight,

pre -flight preparation, run -up, take -off,

cruise, climb, descend, landing, after landing,

shut down, all of these things have specific steps and tasks that have to be done

and the way the the way the checklists have been developed is by looking at where

the failures were in prior aviation incidents.

So pilots really focus on them, and even though they can do their checklists by

memory, they may do the flow from memory, but then they stop,

pull out the checklist, and go down point by point checking off did I do this was

the result a pass or a fail so that the flight can be conducted safely from

beginning to end. Consider jury instructions a sort of checklist.

So you have your checklist, you have what you need to prove,

what the other side needs to prove, and you don't miss anything. Then,

as things happen in the case, you can beef up the checklist.

You can add to it to make sure that you're not missing things that are unique to

the case or things that you may want to add to your practice checklist for these

kinds of cases in the future. So I think the use of a checklist like they use in

aviation is a really good thing to do in litigation and it helps you be effective,

efficient, not miss anything, and get to your destination safely.

Well that's all for Coverage Counsel is in this week. Thanks for tuning in and

again please feel free to make any suggestions to improve the podcast and make any

suggestions for topics you would like me to discuss. So until next week this is Bob

Salander signing off. Thank you.