Appellate Insights

Busy litigation teams often defer drafting jury instructions until the eve of trial, or sometimes even mid-trial.  But preparing an internal set of draft instructions on your main claims or defenses at the beginning of a case has significant benefits as the case progresses.  Among other things:

• At the pleading stage, the draft instructions outline what elements you’ll need to prove—and therefore what you need to allege.

• During discovery, the draft instructions provide a roadmap for what evidence you need to develop to establish your claims or defenses.

• At trial, comparing the admitted evidence to the draft instructions helps ensure that you’ve hit every necessary element, in time to fill any gaps before the case is submitted.  Thinking through the instructions in advance also better positions you to catch any issues with the other side’s proposed instructions.

► The practical message.  Consider drafting jury instructions concurrently with the complaint or answer, instead of in the run-up to trial—and then remember to use them as a resource at each step along the way.