Caveat: Quality Control Over Jury Instructions and Interrogatories Is Wanting
On December 3, 2001 Joe Horn was darting towards the end zone leaving a cornerback in his dust. Aaron Brooks launched a high floating spiral on a perfect trajectory for Joe to catch in mid-stride. A touchdown was virtually assured. At the last second a referee stumbled into Joe’s path and unwittingly tackled him just before the ball arrived. Pass incomplete! If that play were a trial, the actions of the referee could be the charge of the jury. Make no mistake, your best laid trial plans can be torn assunder by defective jury instructions or interrogatories. And the play is usually non-reviewable.
The drafting and submission of instructions and interrogatories as well as their presentation in a charge conference is a greatly neglected area of trial practice. I can only remember one seminar lecture, in twenty-four years that addressed the topic in my presence. This is not surprising, because at the smorgasbord of trial advocacy the charging of the jury is the obligatory pickle tray. By the end of the trial your last shot of adrenaline is needed for summation; so the charge conference may take a back seat. Beware!
Several cases point out the peril of poor charging. In Posey v. Singletary, 797 So.2d 1249 (La. App. 2 Cir. 2001) the plaintiff settled with the doctor for $100,000 and went to trial against the PCF. The Second Circuit found satisfactory instructions which did not even mention the PCF or its role and downplayed the post-Graham impact of the $100,000 settlement. The court held that the trial judge is accorded wide discretion in composing jury instructions and a jury verdict will not be upset unless there is harmful error such that the jury was misled or prevented from doing justice. To determine harmfulness the appellate court compares “the degree of error with the entire instructions and the circumstances of the case”.
The circumstances of the case? – you may ask. In Posey the court cited as circumstances the following:
The opening statement by plaintiffs’ attorney carefully explained the meaning and role of the LPCF and pronounced that Dr. Singletary was a nominal defendant and the LPCF “comes in to pick up the pieces”. During trial plaintiffs’ counsel also made certain that the jury knew that the defense counsel was representing both Dr. Singletary, who was described as a nominal defendant, and the Louisiana Patient’s Compensation Fund.
How odd. Although jurors are uniformly advised that all instructions on the law come from the bench, the court assumes the jurors “knew” the law because of the comments of plaintiffs’ counsel. While it is impressed upon jurors that statements of counsel are mere argument, the Second Circuit knows them to carry greater import. Isn’t the court really trying to read the collective mind of the jury?
Evidently mind reading is acceptable as a basis for finding defective jury instructions to be harmless. In Taylor v. Tulane, 751 So.2d 949, (La. App. 4 Cir. 1999), the court minimized a defective instruction on failure to mitigate in a case where the defendant had not even pled that affirmative defense. The Fourth Circuit reasoned that, based upon the evidence, the jury could not have found any failure to mitigate. The court was unimpressed that defense counsel had pursued the issue tenaciously at trial and just as strongly argued it in its appellate brief. The error was harmless because the court had read the jury’s mind.
Jury interrogatories are similarly susceptible to judicial spin for the seemingly incongruous actions of a jury. In Hebert v. Parker, 796 So.2d 19 (La. App. 4 Cir. 2001) the court dealt with a faulty jury interrogatory and contradictory response by the jury in a loss of chance of survival case. An interrogatory inquired as to whether the plaintiff lost “a reasonable chance of survival” because of a delay in diagnosis. Following that question the jurors were instructed to proceed to the questions on damages irrespective of their answer. The jury said “NO” as to the loss of a reasonable chance but then proceeded to award damages. The Fourth Circuit pointed out that the correct law was that loss of “any” chance was compensible but made no mention of whether this point had ever been brought to the jury’s attention. Relying upon the instruction to proceed to the next question regardless of the answer, the court overturned the trial judge’s post-trial dismissal of plaintiff’s case. The Fourth Circuit interpreted the jury to mean that plaintiff did not lose a reasonable chance but she did lose some chance. What a shame this skill it mind reading eludes those of us presenting cases to juries. We could do away with focus groups and just hire retired appellate judges.
The point of this article, however, is not to chastise the judiciary. In truth, for the trial court, composing jury charges is an act of thankless drudgery with input from actors working at cross purposes. It calls for the patience of Job, the wisdom of Solomon and the tolerance of Will Rogers. And then the judge is expected to produce a document which will educate 12 people selected for their lack of sophistication and generally possessed of a brief attention span. Just kidding!
To minimize the pitfalls of bad instructions and interrogatories, remember less is more. Do not inundate the judge with 50-60 special charges. Avoid nitpicky charges on basic legal principles. Like the theme of your case, requested charges should focus on key points. Select and refine a small group of charges that are valid, instructional and support your theory of the case.
Judges dread receiving volumes of requested charges. It makes it too easy to just say “no, no, no, no…” Judges also dislike charge conferences because they delay the trial and involve endless argument. Some judges do not even hold conferences. They hand down their instructions and allow the attorneys to enter objections in their absence.
To overcome these obstacles focus on truly important charges. Where appropriate, include not just citations but a concise statement of why the charge is essential to your particular case. Remember, much of the work or scrutinizing charge requests is performed by a law clerk who likely missed most, if not all of the trial. Special charge requests can be an opportunity to inform and persuade. To a limited degree they are the jury trial equivalent of a trial brief on legal issues.
As for jury interrogatories keep them simple and understandable to lay people. The interrogatories do not need to incorporate the instructions. For example:
- Did Dr. Grim breach the standard of care in his treatment of Ms. Goose?
- Did Dr. Grim’s breach of the standard of care cause injury to Ms. Goose?
- Did Ms. Goose breach her duty of care to herself in connection with her treatment by Dr. Grim?
- Did Ms. Goose’s breach of her duty of care cause injury to herself related to her treatment by Dr. Grim?
On the issue of damages though, it is useful to break out the separate elements of damages and require the jury to assign a dollar value for each.
Collectively, we need to make an effort to improve our odds of securing correct and effective jury instructions and interrogatories. To that end David Bradley has magnanimously agreed to gather requested jury charges and interrogatories which our members have submitted to courts on their cases. Please send to LTLA any special charges or interrogatories as to which you feel a sense of pride in authorship. Once David has accumulated a treasure trove of these items, we will put together a team to organize and refine them. Ultimately we would like to produce for the membership a special charge file and also proposed standard charges and interrogatories for medical malpractice cases. Your input will be greatly appreciated.
