Chapter §51.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§51.8STRATEGIC AND PRACTICAL CONSIDERATIONS

This section discusses strategic and practical considerations that arise regarding jury instructions.

(1)Convincing the judge to use your instructions

The proponent of an instruction must provide the court with appropriate instructions that correctly state the law supporting the theory advocated. Egede-Nissen v. Crystal Mtn., Inc., 93 Wn.2d 127, 135, 606 P.2d 1214 (1980). Not all such instructions will be accepted, however. The difference between the court's accepting your instruction versus one proposed by the opposing party rests on a number of factors.

First, here, as in other areas, credibility as an advocate is critical to the persuasive process. Minor mistakes or lack of candor undercut the court's trust in counsel and therefore the client. If you modify, even slightly, a pattern instruction, the modification should be disclosed to the court. Do not misquote authority. Tell the court when it must extend existing law to cover the facts of your case.

Second, the process of getting the court to accept an instruction must start as early as possible before trial. If you will be suggesting novel legal theories, alert the judge beforehand, during discovery motions or other appearances. At a minimum, complex or novel legal issues should be discussed in the trial brief or a separate memorandum specifically offered in support of the proposed jury instructions.

Finally, the simpler an instruction is, the more likely it is that the court will accept it. Keep it simple and accurate.

Practice Tip: Jury instructions can be based on decisions in nonjury cases Do not rely solely on pattern instructions. Drafting of jury instructions can be the most creative part of trial preparation.

(2)Use of published instructions: CR 51(d)

Many attorneys start preparation of their jury instructions by referring to Washington Practice : Washington Pattern Jury Instructions Civil (WPI). The law of product liability and the abolition of joint and several liability have caused rapid changes in tort law. Consequently, it is necessary to consult the most current version of the WPI, currently Washington Practice: Washington Pattern Jury Instructions Civil (6th ed. 2012), and compare that to the instructions online in Washington Supreme Court Committee on Jury Instructions, Washington Civil & Criminal Jury Instructions (2013), available at http://government. westlaw.comIlinkedsliceIdefault.asp?SP=WCCJI-1000 (last visited December 8,2013). The online versionis the most current and controlling version and is updated frequently. See Washington Pattern Jury Instructions, Recent Updates, available at http: 11 government, westlaw. com I linkedslice I shared I help.asp ?RS=GVT1.0&VR=2.0&SP=wciji-1000#recentupdates (last visited December 8, 2013).

In using pattern instructions, carefully review the "Notes on Use" that provide information regarding when and how bracketed material should be used. Some of these notes are not helpful, however. The first note to WPI 15.04, for example, states simply that the bracketed material should be used "as applicable."

Caveat: Use the WPI as a starting point, recognizing that WPI instructions may not be appropriate for your case. Careful attention should be given to whether additional instructions need to be drafted, whether the pattern instructions are correct statements of the law, and whether a simpler statement of the law would be more appropriate. The pattern instructions are not meant to cover all situations.

When appropriate, consider redrafting the instructions to shorten and simplify the verbiage. Much can be done to simplify WPI instructions. Complex ideas do not necessarily require complex language.

Increase the readability and persuasive power of pattern instructions by customizing them for your case. For example, pattern instructions can be modified to refer to the plaintiff and defendant by name. This often makes the instruction easier to follow and the law more accessible to the jury.

It may be possible to persuade the court that you are entitled to a more favorable statement of the law than that contained in the pattern instructions, or that assumptions made by the Committee on Jury Instructions were not valid. You should understand that this will often be an uphill battle fraught with risk. Judges are increasingly comfortable using the pattern instructions and more reluctant to depart from their language. Moreover, if you develop your own instruction and it does not correctly state the law, the appellate court will reverse.

CR 51(d)(3) allows superior courts, at their option, to design a system under which a party requests pattern instructions by reference to the pattern number only. The increased use of computers in the courtroom may generate more interest in this provision of the rule. Even if your county allows this option, however, it is not always a good idea to pursue it. The adequacy of jury instructions should be determined by reviewing the proposed instructions as a complete package, not individually. It is much more difficult to perceive jury instruction error if some...