Appellate Insights

Jury trials are ramping up after a long hiatus. With jury trials come jury instructions, a common basis for appellate reversal. To preserve instructional error arguments (in case you lose at trial), and to minimize the risk of reversal (in the hope that you win at trial):

• Propose a complete set of instructions. An appellant generally can’t complain about the court’s failure to give an instruction it didn’t request.
• Propose accurate, non-argumentative instructions. The trial court is entitled to deny an instruction that doesn’t meet these criteria—and if the court gives the instruction anyway, the improper instruction creates a ground for the other side to seek reversal.
• Object on the record to instructions that are incorrect, inapplicable or incomplete. California law “deems” parties to have objected to certain kinds of instructional errors, but not others. Err on the side of caution by objecting to any instruction with which you disagree.

►  The practical message: Jury instructions are a crucial—often dispositive—component of jury trials. Draft them with care, long before the deadline, and scour the other side’s proposed instructions to identify any objectionable errors.