3.8.11

Handout #19 Sample Jury Instructions

Discovery Project returned Thursday

Remaining Classes
3.8- Trial
3.9- Electronic Discovery
3.10- Review
3.15- Appellate
One free class- move final to 3.16?

Trial Continued

Asking questions you don't know the answer to at trial is walking a minefield.
Preparation for depositions will help reduce new information from surfacing at trial.
Knowing when to quit- more is not necessarily better.
Subtle is best, don't alienate the jury.

Direct- unlimited
Cross- unlimited
Re-direct & Re-cross- limited by the questions that preceded
(may request question outside scope)

Most difficult part of defense is sitting through plaintiff's case.

Rebuttal Evidence- Evidence, witnesses, or testimony solely for the purpose of rebutting

Closing argument- all about preparation. Don't re-hash the evidence. Tie it all together, but in a new way. Think about the closing every day after trial- quotes, exhibits, "gems", and assemble closing around them.

WPI- Washington Pattern Instructions
Jury Instructions- Basic
Custom jury instructions frequently needed

Top 10 Jury Mistakes (Appeal-able)
1. Juror who conceals facts of prejudices or lies in voir dire (particularly facts that could lead to objection for cause)
2. Consulting any unauthorized evidence; jury must make decision solely on evidence submitted in trial.
3. Conducting experiments- facts are different, cannot replicate with certainty.
4. Private studying of the evidence. (ie. taking evidence home, etc.)
5. Private viewing of the scene without court approval.
6. Outside reviews or consultations.
7. Arguing facts or experience not in evidence.
8. Private consultation with attorneys or parties in the case. (EX "good morning", no speaking)
9. Chance and quotient verdicts.
Chance verdict- Based on an event that may or may not happen, not discussion. (EX flipping a coin, etc.)
Quotient verdict- Everyone votes and value is averaged. Must come to agreement about number, otherwise 12 separate verdicts.
10. Early judging of the evidence. (announcing conclusion before discussion has commenced)

Allowed:
- You are allowed to use your previous experience and knowledge.
- Additional review of the deposition, testimony, or trial record.
- Asking court questions
- Taking notes- Judges are split on allowing this, some do and some don't. Juror notes are destroyed after trial.

Jury Deliberations
Only Admitted Evidence
-Demonstrative exhibits do not go with jury
-Pleadings do not go with jury

Jury #s- top to bottom, left to right. Starting in upper left corner
1 2 3 4 5 6
7 8 9 10 11 12

Defense must convince 10/12
Plaintiff must convince 3/12

Mistrial-
Curative instructions- Judge instructs jury to disregard
Motion for reconsideration CR 59- gives Judge the opportunity to correct prejudicial errors of law.

The Paralegal's Part at Trial
- Making sure that the people you need are there. Subpoenas, etc.
- Keeping track of exhibits
- Be careful about mannerisms. Be professional, calm, confident.
- Taking notes during trial- Always breakdown by day and time
-- Key quotes for closing (write down word for word)
-- Every time Judge rules it is a potential appeal

Appeals
- Mostly specialty work
- Rules of Appellate Procedure- RAP
- Appellant and Appellee
- Appeals are expensive, time consuming and almost always unsuccessful. Chance of prevailing at appeal is less than 5 to 1.
- Appeals used for negotiation

Cross Appeal
Plaintiff wins $100k, wanted $200k
Defendant appeals, how long do we have to cross appeal? State RAP 5.2(f)(1)
Federal FRAP 4(a)(3)
Appellant/Appellee and vice versa