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.