Don't Fumble a Jury Charge Error

 Lawyers should be aware of the very short window to preserve an error in the jury charge.

Civil Procedure 

Rule 273 states: “Either party may present to the court and request written questions, definitions, and instructions to be given to the jury; and the court may give them or a part thereof, or may refuse to give them, as may be proper.” Tex. R. Civ. P. 273. Accordingly, each party must request the questions, instructions, and definitions that are necessary for the party to prevail. Tex. R. Civ. P. 278.

These requests must be made at the correct time and with a sufficient amount of specificity.  They can be in the form of a request, motion, or an objection. These definitions are as follows:

• A request is used for asking about a specific jury instruction or asking about a specific disputed issue. 
• A motion asks for legal relief. 
• An objection is a complaint about something that is going on before or during a trial

See here.

Timing is everything here. An objection must be made immediately after an objectionable event has occurred or at least within a reasonable time for the court to correct the harm. In the context of an objection to a jury charge, the timing of that objection usually occurs after the court informs the parties of its proposed jury instructions and before the judge reads the instructions to the jury. Fed. R. Civ. P. 51(b)(2); 51(c)(2). If an objection is not made within this short time frame, then the objection is waived. If the objection is waived, then there is not a preservation of error in the jury charge.

If a timely objection is made, then a lawyer should encourage the court for an express ruling for the record. It is very important that the record reflect an objectionable event, here an error in the jury instructions, an objection, and a ruling. If there are any holes in the appellate record, a valid objection could be lost on appeal. 

It is critical to be aware of the proposed jury instructions and double check those carefully. As with everything that occurs during a jury trial, lawyers must remain calm and alert for any errors or mistakes. A good idea for lawyers to identify an error in the jury charge is to prepare their own suggested jury instructions for the court.

Early Preparation is Key

As one law review article states "[e]rror preservation should not be viewed in isolation or considered only at the last minute in response to an adverse ruling. Rather, it should be an integral part of overall strategy of a case." Keeping the error preservation in consideration throughout the case, lawyers will be on notice and ready when the very short time window arises to object to an error in the jury charge. 

There are many pre-trial preparation strategies. To best prepare and spot an issue in the jury charge quickly, it is recommended that lawyers draft their own jury charges. By drafting their own instructions, lawyers will research the law and find determinative facts that must be shown with evidence to satisfy all the necessary elements of the offense. A draft charge serves as an effective roadmap because it focuses on which legal arguments and supported facts should be displayed for the jury. 

Additionally, prepared jury instructions make lawyers think about their presentation and encourages lawyers to come up with key phrases to weave through their argument. Most of the time, language in the jury instructions can be hard for the jury to understand. If a lawyer adequately prepares these key phrases, the jury will recognize them when they are mentioned again in the jury instructions. Then, the jury will likely better understand which facts apply to each element of the charge. 

There are many benefits to preparing jury instructions prior to time of the trial. Lawyers are benefitted by working through an effective roadmap to stay alert for objections. Preparation is key especially if a judge asks for any proposed jury instructions, or if there is an objection, a lawyer is prepared with a new suggested jury charge without overstating the law. Also, jurors want to see a succinct case that matches laws to facts to make their job more digestible.