You have been asked to prepare a set of jury instructions and a verdict form for trial.  What do you do? Where do you start?  In my last op-ed, I offered advice on drafting jury instructions.  Now I tackle how to prepare for the charge conference:

II. Preparing for the Charge Conference

Part of preparing for the charge conference is ensuring that you bring with you all necessary material.  That includes bringing to the charge conference copies of all pertinent authority that may be the subject of the parties’ respective proposed instructions or verdict forms. Consider providing the court a binder that includes the instructions, verdict form and authority you will rely on. But, do not forget that it is not enough to simply hand this to the judge. File your proposed instructions and verdict form with the clerk’s office so that you have a proper appellate record. Likewise, make sure all other parties’ requested instructions are filed with the court.

Be sure to compare your instructions to the opposing party’s so that you can bring any differences to the trial court’s attention during the charge conference. It is helpful to cross reference the instructions on your copy or to create a chart that reflects your numbered instructions and how they correspond to the other side’s instructions.  Also, make sure that you have written notes of your objections to the opposing party’s instructions at the charge conference. Every appellate lawyer who has ever reviewed the cold record of a charge conference will tell you it almost always seems confusing, with people interrupting each other, talking in shorthand, and referring to things that are never identified on the record. To avoid such confusion, follow these simple steps:

1. Create a chart that reflects your numbered instructions in one column and the other side’s corresponding instruction in the next column.
2. Cross reference your instruction to opposing counsel’s instruction (i.e. note on your #3 instruction for legal cause that it is similar to opposing counsel’s #7 instruction). That way it is easier to go back and forth between different sets of instructions.
3. Make notes of every objection right on the instruction. That way you will always have your objection handy, even if the judge is jumping around between instructions.
4. Cross reference on opposing counsel’s instructions why your instruction is different or better.
5. Make sure you have extra clean sets of unstapled instructions, so that you can merge your instructions with that of opposing counsel according to the court’s rulings.
6. File your written objections and the final version of the instructions.
7. Do the same with regard to the verdict forms.

(See S. Walbolt & C. Alonso, “Jury Instructions: A Road Map for Trial Counsel.” Litigation, The Journal of the ABA Litigation Section, Vol. 30, No.2, Winter 2004).

Stay tuned for part 3: during the charge conference.

This series is adapted from Practical Guidelines for Jury Instructions, Verdict Forms, the Charge Conference, and Preserving Error by Cristina Alonso published in the Summer 2014 issue of the ABA’s Product Liability Committee Newsletter.