Louisiana Injury Lawyer Blog

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.

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).

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).

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.