Louisiana Injury Lawyer Blog

Randy Piedrahita of the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews, recently completed a week long Advanced SWAT school taught by Steve Clagett of TV's "Dallas SWAT" fame. The first two days, shown here, highlighted shooting and hostage rescue with live fire and Simunitions (paintball type); later days worked on airplane and vehicle assaults and complicated hostage rescue scenarios. Many thanks to Fulcrum Tactical for its continued charitable works in making great training like this available for law enforcement.

The first, and most obvious, step before submitting requests for special jury instructions is to obtain the trial judge's standard form jury instructions, if he has any. The bulk of the necessary instructions are typically included in those forms, so there is no need to submit requested instructions on those topics. On the other hand, the wording of the form charges may be less than optimal, so they should be carefully compared to counsel's own charges on each topic.

That comparison is possible because today's computer technology makes it easy to compile databases of form jury instructions on specific topics. Ideally, such a database will allow the lawyer to simply go through an index to determine the instructions to submit in a given case.

Instructions typically originate in the statutes or jurisprudence. A case that is on all fours with the present case is a great source of definitive law on the subject at hand, be it liability or damages issues. Some publications, notably Eason's, specifically identify language that is either approved or appropriate for jury instructions. A significant secondary source of civil jury instructions in Louisiana is A. Johnson, Civil Jury Instruction (2d ed. 2001), in 18 Louisiana Civil Law Treatise. West also publishes Pattern Jury Instructions for Civil Cases, compiled by the U.S. Fifth Circuit District Judges Association. Whatever the source of the instruction, it should be identified on the request to facilitate the work of the court in checking the accuracy of the instruction.

One of the advantages of using synthesized jury instructions, whether from a book or not, rather than direct statutory or jurisprudential quotations is that the former are typically much easier for the layperson juror to understand. Given the average educational achievement in society, an instruction full of fifty-cent legalisms may sound impressive to the court reporter, but it will not communicate any meaningful concepts to many members of the jury. Trial lawyers should make a conscious effort to translate their instructions into language that is both understandable and an accurate statement of the law. Clarity is especially important because of jurors' access to the written instructions.

Finally, do not fail to check the other side's requested instructions. Even without any intent to mislead the court, cases get overruled or vital language gets omitted from the instruction. Maintaining objections is much easier when one can cite the proverbial chapter and verse.

Assuming that any error has been adequately preserved on appeal, what is the effect of an erroneous jury instruction? There are two possible situations here. The first is when the jury is simply given the wrong law, as in Berg v. Zummo, 786 So.2d 708 (La. 2001). In these kinds of cases, there are no real factual issues; the issue is simply what law applies to the given facts. The appellate court, in a rather straightforward manner, applies the correct law to the facts to determine the outcome.

The more complicated situation is one in which the jury's factual findings were arguably influenced by the erroneous or omitted instruction. In Nicholas v. Allstate Ins. Co., 99-2522 (La. 8/31/00), 765 So.2d 1017, 1023, the supreme court set forth the law applicable to appellate review in such cases:

Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Melancon v. Sunshine Const., Inc., 97-1167 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011. The basis for this rule of law is that trial courts are given broad discretion in formulating jury instructions and it is well accepted that a trial court judgment will not be reversed so long as the charge correctly states the substance of the law. United States v. L'Hoste, 609 F.2d 796, 805 (5 Cir.), cert. denied, 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). However, when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Smith v. Travelers Ins. Co., 430 So.2d 55 (La.1983). In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if they adequately provide the correct principles of law as applied to the issued framed in the pleadings and evidence and whether they adequately guided the jury in its deliberation. Kaplan v. Missouri-Pacific R.R. Co., 409 So.2d 298, 304-05 (La.App. 3 Cir.1981). Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Brown v. White, 405 So.2d 555, 560 (La.App. 4 Cir.1981), aff'd, 430 So.2d 16 (La.1982).

See also Medine v. Roniger, 03-3436 (La. 7/2/04) (same). If this test is satisfied, that is, if the court is convinced that the jury was misled to the point that it was prevented from dispensing justice, then the jury's verdict is not entitled to any deference on appeal, and the manifest error standard of review is abandoned. The appellate court then engages in de novo review of the entire record. In effect, because of Louisiana courts' disinclination to remand for new trials under Gonzales v. Xerox Corp., 320 So.2d 163 (La. 1975), the ultimate effect of improper instructions is typically loss of the right to trial by jury.

Louisiana Code of Civil Procedure article 1793(C) states, "A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict, or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection." As one court of appeal has stated, "The proper and efficient administration of civil jury trials demands that a trial judge be given an adequate opportunity to recognize and correct errors he may have committed in his instructions before submitting the case to the jury." Watts v. Aetna Cas. & Sur. Co., 309 So.2d 402, 405 (La. App. 2d Cir.), writs denied, 313 So.2d 601 (La. 1975). The supreme court recently held that an appellate court erred in considering the propriety of jury instructions in the absence of any objection by the parties. Guidry v. Dwight Manuel, Inc., 04-C-2031 (La. 11/17/04) 887 So.2d 456 (per curiam).

The contemporaneous objection rule has two requirements. The first, and most familiar, is the temporal requirement -- the objection must be made either before or immediately after the jury retires. Thus in Sledge v. Continental Cas. Co., 25,770 (La. App. 2 Cir. 6/24/94), 639 So.2d 805, the court held that an objection made twenty minutes after the jury retired, and after the jury had returned with a question, was too late to preserve any error for appeal.

The second requirement is that of specificity as to both the objectionable matter and the basis for the objection. An objection that is general as to the instructions, or that fails to state the grounds for the objection, does not preserve error for review. Thus, where the record shows an objection, but the grounds are not stated, the objection is deemed waived. See, e.g., Etcher v. Neumann, 00-2282 (La. App. 1 Cir. 12/28/01), 806 So.2d 826, writ denied, 02-0904 (La. 5/31/02), 817 So.2d 105; Sanders v. Bain, 31,362 (La. App. 2 Cir. 12/9/98), 722 So.2d 386; Dehart v. Burlington N. & S.F. R. Co., 03-279 (La. App. 5 Cir. 10/28/03), 860 So.2d 248, writ denied, 03-3251 (La. 26/04), 865 So.2d 732. It is the objecting party's responsibility to ensure that both the objection and its asserted basis appear in the record. Menzie Tile Co. v. Professional Centre, 594 So.2d 410 (La. App. 1st Cir. 1991), writ denied, 600 So.2d 610 (La. 1992).

Despite the requirements of article 1793(C), some Louisiana courts have recognized an exception to the contemporaneous objection requirement in cases of "plain and fundamental error."

In Berg v. Zummo, 786 So.2d 708, 716 n.5 (La. 2001), the lower courts, on the basis of a jury verdict, awarded exemplary damages under La. C.C. article 2315.4 against a server of alcoholic beverages. The plaintiff argued that the defendants had not objected to the pertinent jury instructions, but the supreme court rejected that argument, stating that "the jury instructions and interrogatories . . . misstated the law and thus contained a 'plain and fundamental' error which leads us to relax the contemporaneous objection requirement." But the court did not use this to justify a de novo fact review, but only to justify reviewing the legal correctness of the unobjected-to instructions and interrogatories. At least two intermediate appellate court cases have reviewed jury instructions in the absence of an objection in cases of "plain" or "clear" error. Jones v. Peyton Place, Inc., 95-0574 (La. App. 4 Cir. 5/22/96), 675 So.2d 754, 760-61 (failure to instruct the jury on the plaintiff's alternative theory of strict liability under former La. C.C. art. 2317 held to have interdicted fact finding and thus justified de novo review); Guidry v. Bank of LaPlace, 94-1758 (La. App. 4 Cir. 9/15/95), 661 So.2d 1052, 1057 & n.10, writs denied, 95-2477, 95-2490, 95- 2498 (La. 1/5/96), 666 So.2d 295, 296 (erroneous creation of an independent cause of action for aiding and abetting fraud tainted the verdict and thus required de novo review). Several other cases have referred to the doctrine in dicta, while not finding plain or fundamental error present.

Despite these cases, there remain indications that the doctrine may not be wholly embraced by the Louisiana Supreme Court. In State v. Thomas, 427 So.2d 428 (La. 1983), the court rejected a "plain error" exception in Louisiana criminal cases, because (as here) the Louisiana code article was silent, while the analogous federal rule, Fed. R. Cr. P. 52(b), explicitly recognized such an exception. And in Nicholas v. Allstate Ins. Co., 99-2522 (La. 8/31/00), 765 So.2d 1017, 1023 n.7, the court reviewed instructions that had not been assigned as error on appeal, but explicitly stated that it "in no way abrogate[d] that body of jurisprudence which requires that a party must assert an objection in the trial court in order for an appellate court to reach the issue." In light of these cases, and the further uncertainty concerning whether a given error will be deemed sufficiently "fundamental," the cautious practitioner will continue to make the objection in accordance with article 1793(C).

Trial counsel should always review the final jury instructions prior to closing. Paragraph B of Louisiana Code of Civil Procedure article 1793 provides: "The court shall inform the parties of its proposed action on the written requests and shall also inform the parties of the instructions it intends to give to the jury at the close of the evidence within a reasonable time prior to their arguments to the jury." Familiarity with the instructions allows the lawyer to tailor the argument to fit the instructions, by explaining the significance of favorable instructions and explaining why unfavorable instructions should not apply to the particular case.

Although this paper is primarily concerned with instructions given at the close of evidence pursuant to article 1792(B), paragraph A of that article allows the judge to instruct the jury "[a]t any time during the trial." This is commonly done, for example, when an expert witness is called to testify; the judge often instructs the jury at that point concerning the ability of experts to testify about their opinions. Some commentators urge caution, however, because mid-trial instructions may unduly influence the jury. See, e.g., F. Maraist & H. Lemmon, Civil Procedure § 11.10, at 304, in 1 Louisiana Civil Law Treatise (1999).

Article 1796 also allows the court to provide additional or corrected instructions to the jury after the jury has retired for deliberation. This can only be done after notice is given to the parties; further instruction without notice taints the verdict. Carpenter v. Hannan, 01-0467 (La. App. 1 Cir. 3/28/02), 818 So.2d 226; Lawson v. Strauss, 98-2096 (La. App. 4 Cir. 12/8/99), 750 So.2d 234, writ denied, 00-0120 (La. 3/17/00), 756 So.2d 1144.

The primary responsibility for instructing the jury lies with the judge. La. C.C.P. art. 1792(B). Adequate jury instructions are those that fairly and reasonably point out the issues presented by the evidence and the pleadings and provide correct principles of law for the jury to apply. Luman v. Highlands Ins. Co., 25,445 (La. App. 2 Cir. 2/23/94), 632 So.2d 910. Since 1997, paragraph C of Louisiana Code of Civil Procedure article 1792 has allowed the jury to review a written copy of the instructions.

The court is not required to give the precise instructions requested by either party. Rather, the judge must give instructions that properly reflect the applicable law in light of the facts of the particular case. Goodman v. Allstate Ins. Co., 98-732 (La. App. 5 Cir. 5/19/99), 736 So.2d 310, writs denied, 99-1788, 99-1793 (La. 10/1/99), 748 So.2d 450. "Proper jury instructions are those which fairly and reasonably point up the issues presented by the pleadings and evidence and provide correct principles of law for the jury to apply to those issues." Crooks v. National Union Fire Ins. Co., 620 So.2d 421 (La. App. 3rd Cir.), writs denied, 629 So.2d 391, 392 (La. 1993). Obviously, a requested instruction that misstates the law is objectionable. But even if it correctly states the law, a requested instruction can be refused if it repeats matters included elsewhere in the instructions, Wilson v. Aetna Cas. & Sur. Co., 401 So.2d 500 (La. App. 2d Cir. 1981), or if there is not sufficient evidence to support it, Knight v. First Guaranty Bank, 577 So.2d 263 (La. App. 1st Cir.), writs denied, 581 So.2d 688, 690 (La. 1990).

The Louisiana First Circuit Court of Appeal has repeatedly stated that "[t]he trial court is responsible for reducing the possibility of confusing the jury." Baxter v. Sonat Offshore Drilling, 98-1054 (La. App. 1 Cir. 5/14/99), 734 So.2d 901; see also McCrea v. Petroleum, Inc., 96-1962 (La. App. 1 Cir. 12/29/97), 705 So.2d 787; Johnson v. Terrebonne Parish Sheriff's Office, 95-1180 (La. App. 1 Cir. 2/23/96), 669 So.2d 577, writ denied, 96-727 (La. 4/26/96), 672 So.2d 907. This responsibility should persuade the trial court that, whenever possible, accurate instructions in plain English should be preferred over legalese.

Baton Rouge, Louisiana personal injury attorney, Randy Piedrahita, will be presenting a Continuing Legal Education Seminar on taking expert witness depositions for trial purposes. This seminar from the LSU Law Center will address when, why, and how such testimony should be taken, including the legal rules governing the process.