Many years ago, I was the appellate guy on a team of lawyers representing a Fortune 100 company in a high-stakes trial in San Antonio. The client had New York counsel, who sent down their suggested jury instructions. I was still wet behind the ears and never had seen anything like them: pages and pages of prolix instructions in confusing legalese. Needless to say, none of them made it into the jury charge.
For a time, I thought it was simply that New York lawyers were insane. But now, after assisting with trials outside Texas, I know that those instructions typified what courts elsewhere provide. The jury instructions in other states tend to be verbose, confusing and often couched in opaque legal jargon.
Outside of Texas, courts issue a set of jury instructions and a verdict form, which often asks the jury to render a general verdict: "Do you find for the Plaintiff or the Defendant?" As for guidance in the verdict form on the proper elements of damages, don’t even think about it.
Worse still, the instructions are separate from the verdict form and certainly not linked to any specific question in the verdict form. In some instances, the judge merely reads these soporific instructions aloud, without giving them to the jury in writing. That means nothing but the verdict form goes back to the jury room to guide the deliberations.
So what can Lone Star State lawyers learn from the jury-instruction morass in other states? The Texas jury charge is far, far superior to the practice elsewhere. It would be a serious mistake to alter our jury charge practice to more closely resemble other states’.
Yet it is not uncommon to encounter lawyers and judges who think it is wise to lump together the instructions and definitions, right after the boilerplate instructions. This approach cleaves the instructions and definitions from the questions they illuminate. Proponents contend that this streamlines the charge.
Maybe, but it sacrifices clarity and precision in the name of efficiency. In a very practical sense, it destroys the obvious benefits of Texas’ unique and superior charge practice. The jury charge’s function is to serve as a working document in the hands of jurors, ordinary people asked to apply often-complicated law to disputed facts.
For instance, when the judge asks jurors whether the defendant’s negligence proximately caused the plaintiff’s injury, jurors shouldn’t have to wade back through pages of complex — and often unrelated — information to find the definitions of negligence and proximate cause.
The more complex the controlling legal definitions and principles, the more important proximity becomes. The definitions and instructions should follow on the heels of the question and before the answer blank. This helps to ensure that the jury bases its answer on the controlling definitions and principles. Eliminating opportunities for confusion increases the probability of an appropriate verdict.
The theories of primacy and recency help to explain why placement of the definitions and instructions is important. "Primacy" is a cognitive-psychology term for the principle that readers and listeners tend to remember the information they hear first. "Recency" is the $10 word for the fact that the last information discussed lingers in the reader’s or listener’s mind; people remember most accurately what they heard most recently (that’s also why it’s important to have a strong finish in briefs).
If the legal definitions and instructions are the first and last things the jurors read before answering the jury questions, the law is much more likely to guide jurors’ answer to the questions. On the other hand, if the definitions and instructions are remote from the questions, there is no guarantee that primacy and recency will have their salutary effect on the deliberations.
So, in sum, in the name of all that is great about Texas, let’s recognize the benefits of our superior procedure for submitting jury questions. Put the instructions and definitions where they belong: right after the question and before the answer blank. And don’t ruin the Texas jury charge.