Winning Your Appeal at the Trial Court Level: Jury Instructions

Winning Your Appeal at the Trial Court Level:


Jury Instructions


A particular jury instruction is waived if there is not a timely request for it. Also, when dealing with jury instructions, make sure the record is clear as to who requested each instruction. It is important that the record reflects whether any instructions were withdrawn, and who withdrew it, so that you can avoid any adverse presumption from the absence of a particular instruction. (Connor v. Pacific Greyhound Lines (1951) 104 Cal.App.2d 746, 758; Gong v. Firemen’s Insurance Co. (1962) 202 Cal.App.2d 686, 695.)


Jury instructions should not be argumentative; meaning that the instruction should not be an attempt to draw the jury’s attention to a particular aspect of the evidence. Each instruction should simply, and generally, state a principle of law. (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1109.) Where a jury instruction is incorrect, the victimized party is deemed to have objected to it. (Cal. Civ. Proc. §647.) “A party harmed by an instruction’s incorrect statement of law may assert instructional error on appeal without objecting to the instruction in the court or proposing its own correct instruction.” (National Med. Transp. Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 440.)


However, consider the concept of “invited error.” If the defect in a jury instruction could have easily been cured by changing a few words, objection to the instruction and the suggestion of an alternative may be necessary: “[I]if the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1162.) “A presumption of invited error may result from failure to provide the reviewing court with an adequate record” to determine who requested which instruction. (Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743, 759.)


Therefore, my recommendation is that you keep a clean set of all jury instructions given and refused; that you make notes about changes at all jury instruction conferences; and that if there is no court reporter present, you object to any misreading of the jury instructions and put your objections on the record at some point.