Appellate Insights

During trial, there are several opportunities to obtain an edge over opponents simply by offering to prepare or edit documents—in particular, jury instructions and verdict forms.  Here are some tips to obtain and maintain an advantage:

• Don’t simply submit a list of the CACI form jury instruction numbers.  Rather, well before trial if possible, begin drafting the complete set of instructions that you hope will go into the jury room, including tweaking language to fit your theory of the case.

• If you are using a special verdict form, begin drafting it at the same time as your proposed jury instructions.  The court is more likely to pick the simplest form that covers all critical points, and ask the form’s original drafter to make the agreed upon changes in one cohesive document.

• After one round of proposed jury instructions or verdict forms, the court often picks one side’s version as the master template and asks counsel to make changes to that document.  Volunteer to be the editor, so that you can maintain the maximum control over content.

►  The practical message.  Although it might be tempting to let opposing counsel “do the extra work,” clients benefit when you prioritize these tasks early and volunteer to edit the master documents for the court.