The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011 25Jury Instructionsby C

harles J. Zauzig, III

Too little too late?If one were to measure the importance of the

steps moving toward a trial by looking at the tim-ing in the statewide scheduling order, jury instruc-tions would come dead last.1 Pulling the blue book of standard civil instructions at that late stage in the development of the plaintiff’s case is a mistake on many levels.

Waiting until the end of the case to look at the jury instructions prevents using them in framing the case and use during discovery.

Critically thinking your case from the outset has many moving components that are beyond the scope of this paper. Simply put, critical thinking involves reverse engineering of the potential de-fense case by identifying the strongest arguments and defenses and then working to defeat them early on. Once done, the case-in-chief and rebuttal cases can be designed to advance the plaintiff’s point of view and destroy the defendant’s excuses.

Jury instructions should play a role in both processes. Rick Friedman and Pat Malone in their Rules of the Road, 2nd Edition,2 recognize this when they say:

“And now (faint drum roll), the most important advice in this book: Draft proposed jury instructions at the begin-ning of every case.”

**********“This is basic: at the very beginning of a case you should draft a set of proposed jury instructions. The less experienced you are with the type of case you are prosecuting, the more important this is. The more complex the case, the more important it is.”

********** “Nothing focuses the mind of a trial lawyer like a set of jury instructions. The jury instructions are ‘the bottom line,’ as the MBAs like to say. They determine

what evidence is relevant. They deter-mine what you have to prove to win. They reveal what affirmative defenses can hurt you. They are the ultimate, strongest Rules.”

In an automobile case there may be several instructions that apply to the defendant’s conduct. Some of those instructions may involve an “abso-lute duty” and some may depend on failure to use ordinary care. For example, speeding is an absolute duty – you are either speeding or you’re not.

“The maximum speed limit at the time and place of the collision was (number of miles per hour). If the defendant was driving his vehicle faster than this limit, then he was negligent.” Virginia Model Jury Instructions (Civil) - No. 10.080

Compare that with the duty to use ordinary care with look out. There are three duties contained in keeping a proper look out, and they are not abso-lute. They are: (1) the driver must use ordinary care to look in all directions to look for vehicles, persons or conditions that would affect his driving; (2) to see what a reasonable person would have seen; and (3) to react as a reasonable person would have acted to avoid a collision under the circum-stances. So if a case involved speed and look out, in framing up the case the first question would be ‘do I have an on/off switch for speed’ i.e., it is clear that the defendant was going over the speed limit. If not, there is still an avenue that the defen-dant was not using ordinary care because he failed to drive at a “reasonable speed, under the existing conditions.” Just in these three jury instructions in a single car accident, there are at least five areas of inquiry that have to be developed to win the case on liability. Why not have the exact requirements of the jury instructions at the very beginning, and at a minimum, use them to develop the depositions of the defendant and the plaintiff?

Waiting to the end lessens opportunities to create alternatives to the model instructions.

The goal of an instruction is to provide the jury with a correct statement of the law clearly and simply.

“Instructions are meant to aid the jury in its deliberation, not to make deliberations more difficult. This case is a multiple injuries case. Plaintiff asserted such in his motion for judgment. Yet instruction X nowhere makes clear that it is aimed at a problem of multiple injuries. It does not use the word injury in its plural form. It does not mention “several,” “numer-ous,” “many,” or “more than one” injury. More importantly, it does not tell the jury that plaintiff can recover if he proves that any one of his several injuries was

1. X. Jury Instructions Counsel of record, unless compliance is waived by

the court, shall, two business days before a civil jury trial date, exchange proposed jury instructions. At the commencement of trial, counsel of record shall tender the court the originals of all agreed upon instructions and copies of all contested instructions with appropri-ate citations. This requirement shall not preclude the offering of additional instructions at the trial.

2. Friedman R, Malone P; Rules of the Road: a Plaintiff Lawyer’s Guide to Proving Liability (2nd Ed) 2010; Trial Guides, LLD, Portland, OR; pg 32-33.

26 The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011

caused by Dr. Morrison’s negligence . . . .” Gaalaas v. Morrison, 233 Va. at 156, 353 S.E. 2d at 901

As set forth by the Virginia Supreme Court in Honsinger v. Egan, 266 Va. 269, 585 S.E.2d 597 (2003), “The purpose of jury instructions ‘is to fully and fairly inform the jury as to the law of the case applicable to the particular facts, and not to confuse them.’” 266 Va. at 274, 585 S.E.2d at 600, quoting H.W. Miller Trucking Co. v. Flood, 203 Va. 934, 128 S.E.2d 437 (1962).

“[a] litigant is entitled to jury instructions supporting his or her theory of the case if sufficient evidence is introduced to support that theory and if the instructions correctly state the law.” Schlimmer v. Poverty Hunt Club, 268 Va 74, 78, 597 S.E. 2d 43, 45 (2004).

“If a proffered instruction finds any support in credible evidence, its refusal is reversible error.” McClung v. Com-monwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975).

A case in point is the jury instruction on causa-tion that was proffered on behalf of the plaintiff in the Holmes v. Levine, 273 Va. 150 (2007): 060682, case. The standard jury instruction that was ultimately given was from the model instructions which read:

“A proximate cause of an accident, in-jury, or damage is a cause that, in natural and continuous sequence, produces the accident, injury or damage. It is a cause without which the accident, injury or damage would not have occurred.” Virginia Model Jury Instructions (Civil) - No. 5.000 (LexisNexis)

Plaintiff insisted that a less confusing and more correct statement of the law needed a sentence added to the model instruction, to-wit:

“A proximate cause of an injury or damage is a cause which in natural and continuous sequence produces the injury or damage. It is a cause without which the injury would not have occurred. There may be more than one proximate cause of an injury.” Virginia Model Jury Instruc-tions (Civil) - No. 5.000 (as modified); Panousos v. Allen, 245 Va. 60 (1993); Jenkins v. Payne, 251 Va. 122 (1996); Atkinson v. Scheer, 256 Va. 448 (1998); Molchon v. Tyler, 262 Va. 175 (2001)

The plaintiff argued that as read the instruc-tion forces the plaintiff’s lawyer to appear to be parsing words explaining the difference between a proximate cause and the proximate cause; but

once modified in accordance with Virginia law, the jury instruction was clear that the defendant’s negligence did not have to be the only proximate cause of the decedent’s death, thereby eliminating any confusion. The Supreme Court agreed.

Another example is found in defendant’s finger-pointing, particularly in medical malpractice cases. Typically the defendant will finger-point at another physician’s conduct to support their ac-tions either overtly saying that another physician was negligent and caused the injury (empty chair), or will say that although the other physician was not negligent, the other physician acted similarly to the defendant, i.e., failed to note a lesion on a chest x-ray (reverse empty chair). There is no model instruction to address this head-on. There is plenty of law in Virginia that says that a defendant is not relieved of his negligence if his negligence contributes in the slightest degree to the injury.3 The following instruction has been offered under these circumstances and generally granted:

“You may not consider a subsequent treating physician’s failure to diagnose bacteremia or order antibiotics as an event which would relieve the Defendant of liability for any negligent act you may find he committed.” Jenkins v. Payne, 251 Va. 122, 465 S.E.2d 795 (1996); Atkinson v. Scheer, 256 Va. 448, 508 S.E.2d 68 (1998).

Waiting until the end of the case does not leave sufficient time to craft ways to teach the jury what they really mean.

So visualize your last trial and the manner in which jurors are given complex principles of law. The judge announces that he is going to read the law that they are going to apply with the facts they have learned and then proceeds to read page after page of words until he has read through the last one, and the jury is then expected to take a copy of those instructions and decide the case. There is no explanation, there is no teaching, there is no help.

Until the plaintiff’s lawyer stands up to deliver the closing argument. If done right, the jury will recognize that you are providing them great help as a teacher of what all those words really meant. This is what David Ball calls “massaging the jury instructions.”4

“One of your most important tasks in closing is to “massage” the jury instruc-tions.”

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3. Atkinson v. Scheer, 256 Va. 448 (1998).4. Ball, D; David Ball on Damages 3 (3rd Ed) (2011);

National Institute for Trial Advocacy; Louisville, CO; pg 231.

The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011 27

“Deliberating jurors don’t know any law. Much of what they think they know is wrong in ways that can devastate your case. Sending written instructions into deliberations helps, but not much.”

**********

“Written or spoken, the language of the instructions is usually impenetrable. Even with clear language, there’s too much to absorb. Jurors have no way of sorting the important from the unimport-ant. Due to the boring and confusing barrage of instructions, many jurors end up remembering and understanding less law after they’ve heard and read the instructions than before.”

**********

“This hurts you more than it does the defense.”

**********

“As a result, when your favorable jurors do not know the important laws, opposition jurors easily hijack the case by using non-law.”

Let me give you a couple examples. Proximate cause: proximate cause is a very difficult sub-ject as anybody would know who has struggled with Palsgraf,5 in their first year of law school. The jurors need to be taught that the defendant’s negligence does not have to be the only cause; and as long as there is a connection between the defendant’s negligence and the injury or death, the defendant is responsible. See Holmes discussion, infra. There are many ways to illustrate this.

We are always looking to distill into the most simple conceptual language for the jurors the con-cept of the formal instruction. For each concept there should be a take away that the juror can actu-ally use as a tool. For example, the take away for causation is “any connection will do.” Below is a slide that we use for this.

5. Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928).

One way is to imagine that there are four facto-ries polluting a pond. The factory being sued for negligent discharge into the pond is a cause of the pollution in the pond but not the only one. That factory will be held responsible.

A second example is what I call the credibil-ity instruction which is a whole page of factors. In teaching the jury about what that instruction means, we have made a table of factors with numbers, and when we get to a witness and we are talking about bias or prior inconsistent statements, those witnesses get tagged with those numbers and they are shown the table again.

This example deals with the credibility instruc-tion and the weight of expert witness testimony instruction. Below are two instructions used by the jury in measuring the testimony of lay and expert witnesses. Compare this to the table which simply lays out the factors. It is clear, easier to follow, and when discussing witnesses, that witness can be discussed negatively or positively using his factors. Remember, if we don’t teach the jurors what these instructions mean, either defense will, or even worse the jury will guess what they mean.

28 The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011

The End Game: making sense out of the two sets of instructions when we finally receive the defense instructions.

We use the table (Appendix 1) to organize the jury instructions so we are not out in the hallway with defense lawyers trying to sort piles for the judge during trial. It allows us to see at a glance which instructions are the same, which ones are objected to, and ones argued, and a place to put the judge’s ruling.

Conclusion Pulling and thinking about the jury instructions

early on allows them to become embedded in your theory and strategies. Early use also allows them to be tested and then modified to insure they fit the case. Since jury instructions are the law of the case, they deserve to be in first place in the order getting things done for trial.

The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 1, 2011 29

Charles J. Zauzig III is a principal in Nichols, Zauzig, Sandler in Woodbridge. Primar-ily his practice cen-ters around medical malpractice, products liability, and highway safety. A past president of VTLA, Mr. Zauzig is currently serving on the Board of Governors for the American Associa-tion for Justice. He is a frequent lecturer and teacher to other trial lawyers around the country. A graduate of James Madison College in 1975, Mr. Zauzig received his law degree from the University of Richmond Law School.

AdditionalResources

Additional resourcesVTLA materials, available for members at www.vtla.com

“• Jury Instructions: Define, Create and Preserve,” by David B. Hargett, VTLA Criminal Law Seminar, 2008.