BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 6 - Civil Proceedings

    6.06 General Instructions To Jury At End Of Civil Case

        6.06.1 General Instructions To Jury At End Of Civil Case: Introductory Note
        6.06.2 General Instructions To Jury At End Of Civil Case: Outline Of Instructions
        6.06.3 General Instructions To Jury At End Of Civil Case: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Fed. R. Civ. P. 51 outlines the procedure for the submission and consideration of requests by the parties for specific jury instructions. It requires

1. that the court inform counsel before closing arguments of its proposed instructions and its proposed action upon the instructions requested by counsel; and

2. that the court give counsel adequate opportunity outside the hearing of the jury to object to the court’s instructions.

There is no prescribed method for the court to settle on its final set of instructions. Some courts hold an on-the-record charge conference with counsel during trial. At that conference, the tendered instructions are discussed and are accepted, rejected, or modified by the court.

Other courts, without holding a charge conference, prepare a set of proposed instructions from those tendered by counsel. These courts then give a copy of the proposed instructions to all counsel and permit counsel to take exception to the instructions. Thereafter, the court may revise its instructions if convinced by counsel in their objections that the instructions should be modified.

Still other courts require counsel to confer during trial and to agree, to the extent that they can, on the instructions that should be given. The court then considers only those instructions upon which the parties cannot agree.

The court may, of course, give an instruction to the jury that neither party has tendered.

While the court is free to ignore tendered instructions and to instruct the jury sua sponte, the usual practice is for the court to formulate the final instructions with the assistance of counsel and principally from the instructions counsel tendered.

Local practice varies as to whether a written copy of the instructions is given to the jury for use during its deliberations. Many courts always give the jury a written copy of the instructions. Some courts have the instructions recorded as they are given in court and permit the jury to play them back in the jury room. Some courts do neither but will repeat some or all of the instructions in response to a request from the jury.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Instructions delivered at the end of a case consist of three parts: Instructions on general rules that define and control the jury’s duties; statement of rules of law that the jury must apply; and rules and guidelines for jury deliberation and return of verdict.

A. General rules

1. Outline the duty of the jury

(a) to find facts from admitted evidence;

(b) to apply law as given by the court to the facts as found by the jury; and

(c) to decide the case on the evidence and the law regardless of personal opinions and without bias, prejudice, or sympathy.

2. Discuss the burden of proof in civil trials and explain how it differs from the burden of proof in criminal trials.

3. Indicate the evidence to be considered:

(a) sworn testimony of witnesses;

(b) exhibits;

(c) stipulations; and

(d) facts judicially noticed.

4. Indicate what is not evidence:

(a) arguments and statements of counsel;

(b) questions to witnesses;

(c) evidence excluded by rulings of the court.

B. Delineate with precision and with specific consideration of the law of your circuit each claim and defense of the parties that is to be submitted to the jury for their consideration.

C. Jury procedure

1. Selection and duty of the foreperson.

2. Process of jury deliberation:

(a) rational discussion of the evidence by all jurors for the purpose of reaching a unanimous verdict;

(b) each juror to decide the case for himself or herself in the context of the evidence and the law, with proper consideration of other jurors’ views;

(c) jurors may reconsider their views if persuaded by rational discussion but not solely for the sake of reaching a unanimous verdict.

3. Absent a stipulation, the verdict must be unanimous on the issue submitted (Fed. R. Civ. P. 48).

4. Explain the verdict form, if used. [Footnote 1]

5. Jury communications with the court during deliberations must be in writing and signed by the foreperson.

6. The jury must not disclose how it stands numerically or otherwise on the issues submitted.

D. Consider providing the jury with a written copy or transcript of the jury instructions.

FOOTNOTES:

Footnote 1:    Consider whether to use a special verdict (Fed. R. Civ. P. 49). It can be a useful device to reduce the risk of having to retry the entire case.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Civil Litigation Management Manual 87–88, 365, 383 (Judicial Conference of the United States 2001)

Manual for Complex Litigation, Fourth 156–59 (2004)