How Finding Jury Instructions Is Like Being a Chef or “Tendering Instructions Is Like Tenderizing Meat”

When I was a younger lawyer, I didn’t pay attention to jury instructions.

 rationalized my disinterest by saying such aphorisms like “juries decide cases upon facts, not what the Judge tells them to do” or “they’ve already made up their minds by the time the Judge reads the instructions.”

In reality, I was just baffled by the art of instructions and chose to ignore them rather than work hard.  It’s been a lifelong struggle for me on many issues — not just instructions.  But, learning instructions and how and where to develop them has changed my confidence level in any jury trial.

Looking back, I think my disinterest in instructions came from ignorance.  What were they?  Why did my opponent seem to know the law of the particular case better than me?  Where did he get all those beautiful statements of law?  

Here’s a quick legal definition:  Jury instructions are the set of legal rules that jurors ought follow when deciding a case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury. They are often the subject of discussion of the case, how they will decide who is guilty, and are given by the judge in order to make sure their interests are represented and nothing prejudicial is said.

That’s the Wikipedia version.  In reality, instructions are a vital part of any jury trial.  Think about it.  The jury walks into a foreign environment and sees many official-looking persons standing around.  Their individuality is stripped as they are assigned a number.  They are required to watch a video they cannot understand fully.  The austere surroundings add to their collective anxiety.  And all they hear are rules, rules, rules — walk here, sit down here, watch this and come with me.

And above all — like all humans — the juror is deathly afraid of embarrassing herself or doing something that the group will laugh at.  They crave instruction.  They desire somebody — anybody — just tell them what to do.  They want explanation to avoid embarrassment.

And the Judge provides that in the form of instructions.

It explains why almost every juror universally looks to the Judge as the “smartest” person in the court room.  After all, the Judge is the only one that can be trusted.  The lawyers are trying deliberately to manipulate and sway and cannot be trusted.  But, the Judge is telling the juror how to navigate this awful experience called jury duty.

In a civil jury trial like a slip-and-fall or car wreck, the Judge will actually read instructions twice — initially before the opening arguments so that the jurors can be put into the proper frame of mind to receive evidence and finally at the end of closing arguments so that they can render a verdict in accordance with the law.

And jurors do listen.

I’ve had multiple experiences where the jury submits a question to the Judge during deliberations.  In fact, it’s happened more often than not during any of my jury trials.  And, invariably, the question will involve an interpretation of the law rather than evidence.  The jury will ask for further instructions.  And the Judge will almost always respond back “you were read the instructions, now just follow them.”  Occasionally, the Judge will re-read the entire set again (because in theory reading just the misunderstood instruction can be interpreted by an appellate court to be placing “too much emphasis” on any particular instruction).  I have had a Judge pattern a new instruction and read only that instruction after a jury question — and that case was appealed by the defendant — but we ended up victorious because the appellate court thought the instruction given was a proper statement of the law.

Each side is typically allowed to submit 10 instructions (or statements of the law) to the Judge for his discretion in whether they are to be read to the jury before deliberations. These proposed instructions do not need to be statutes (although they can be).  They can come from regulations or even case law (other cases decided by appellate courts and recorded for later use).

A typical objection by the other side will include “that is not a proper statement of the law” or “the evidence in our case does not warrant giving that instruction” or “that instruction is covered by another instruction already given or conflicts with another instruction and will confuse the jury.”

If an instruction is refused to be given to the jury by the Judge and you believe that it was a proper statement of the law and that the evidence warranted giving it, then you might have a basis for an appeal if you lose your verdict.  The same goes for the opposite conclusion — if the Judge gives your instruction it gives the other side an opportunity to appeal any adverse verdict by claiming the instruction was improperly given for any of the reasons discussed above.

I was flustered by my inability to marshal all the infinite instructions into any particular case — was I required to read every case ever decided to find them?


Luckily, Indiana has issued a book of “pattern instructions” that cover most jury trials issues.  If a good lawyer reads the patterns before his trial, he can dramatically reduce the areas of law that he needs to be prepared for and the instructions he needs to tender to the Judge for review.

That’s the nuts and bolts of jury instructions.

Where instructions get really interesting is in the “art” of finding them.  Truly great trial attorneys are able to look at a case during the investigation phase (“discovery”) and predict what the issues will be and then mold all phrasing of questions to fit the predicted law or instruction the Judge will eventually give to the jury.

Like playing chess or baseball or cooking a gourmet meal, a person can spend a lifetime mastering the “art” of something. Gourmet chefs know that the acid in pineapple juice can tenderize the toughest piece of meat, but it’s finding the correct amount of time that turns a tough cut of beef to taste like butter rather than mush.

Similarly, a lawyer can attempt to phrase his investigative questions to support his anticipated statement of the law at trial — but she better be right.  The law must be current and valid.  And, above all, it must end up applying to the facts of the case.

It’s a lifelong battle to master cooking or tendering jury instructions.

And I try.  Gosh, I try.