Florida's new jury instructions in contract and business law cases: a primer.

• Author: Easley, Dorothy F.
• Position: Business Law

For appellate practitioners, strategic litigation support to prevent errors and preserve errors that could not be prevented below is just as important as handling the actual appeal. We know that some of the ripest areas for reversal are jury instructions and verdict forms. On June 6, the Florida Supreme Court approved jury instructions for use in contract and business litigation cases that appellate attorneys advancing business appeals need to understand. Will Ferrell said it best in Anchorman: "I don't know how to put this, but ... [they] are kind of a big deal."

Background

It is worth underscoring that contract and business law cases have long needed standard jury instructions. The Fourth District Court of Appeal articulated the need for them almost 15 years ago:

In short, I sense a reluctance to give any meaningful jury instruction on this seemingly simple but legally complex contractual term. It is important injury trials in contractual disputes for the court to instruct the jury as to the legal rights and obligations under the contract. Judges should not shrink from doing so on the theory that they thereby invade the factual province of the jury. The jury cannot possibly decide whether there has been a breach if they do not know what the law requires the parties to do or not do.

There are few--if indeed there are any at all!--standard jury instructions applicable to breach of contract cases. Most deal with negligence and related subjects. Frankly, this is one of the great voids in the civil standard jury instructions. Any lawyer who has tried a breach of contract case to a jury will testify to the need for standardized instruction on contractual concepts frequently arising. Even conceding that commercial contracts are often unique, there is no gainsaying the benefits that would flow for trial judges and lawyers alike from having a fund of acceptable instructions on common law contractual terms, especially those as here having a legal meaning perhaps different from the naive understanding of the words. (1)

A key part of all jury trials in Florida is the judge's instruction to the jury on the law and processes to be applied to make the jury decisions in the case. (2) This was the focal point of the Florida Supreme Court when then-Chief Justice R. Fred Lewis first ordered the formation of a committee to address contract and business law instructions in a 2006 administrative order. His vision was that standard jury instructions worked well in other cases, but the instructions sorely needed to include more standard ones for contract and business law. There was already a standing committee on jury instructions generally, but they did not have the requisite business and contract law expertise to develop instructions for this specialized area of the law. Chief Justice Lewis wanted a dedicated committee on this specific subject area, with members who were expert in contract and business law to draft instructions that juries could use and understand at trial. So he ordered the formation of the Committee on Standard Jury Instructions --Contract and Business Cases on September 15, 2006. (3) Unknown to many, The Florida Bar members who worked on the new jury instructions would do so for a whopping six years. The committee consisted of Florida Supreme Court justices, judges from the First, Third, and Fourth district courts of appeal, and appellate attorneys and trial attorneys around the state with years of experience and knowledge in contract and business law. (4)

That committee began by searching for states with contract and business jury instructions that they could use as a template for form; in the end, they chose California's jury instructions. That was the starting point of their work to establish the final instructions we have available to us today. (5) Below is a primer on the key parts of the instructions.

The Instructions

The instructions start in Ch. 400; the damages instructions are located under Ch. 500 and are not on the Florida Supreme Court's website as of this writing. What is striking about these instructions is that they extensively cite legal support and contain significant discussion of the pertinent law.

Breach of Contract

The breach of contract group consists of five instructions, beginning with 416.1, Breach of Contract--Introduction. (6) The next instruction within the breach of contract group is 416.2, Third-Party Beneficiary, which is self explanatory but notably rooted in the Restatement (Second) of Contracts [section]302 (1981) definitions that Florida courts have adopted over time in contract cases. In fact, it was the courts' guidance that led to a concise instruction to give the jury to determine easily if someone is a third-party beneficiary. (7) The next within that group is instruction 416.4, Essential Factual Elements, which is utilized when any contract elements are contested, including whether 1) the parties "entered into a contract"; 2) the party fulfilled the terms of the contract (or was excused); 3) "all conditions required by the contract for (defendant's) performance had occurred"; 4) defendant did not comply with the terms of the contract, by either doing something that was not allowed in the contract or not doing something that was required; and 5) the claimant suffered harm. (8) Instruction 416.23, Anticipatory Breach, also falls within that group, and is given if the plaintiff claims anticipatory breach of contract to prove that the defendant indicated he or she "would not or could not perform the contract" and that plaintiff was "willing and able to perform the contract." (9)

Contract Formation

There are also five instructions in the contract formation group, starting with 416.3, Essential Factual Elements of Contract Formation. This instruction is used if 1) a party contests the formation of a contract or certain portions of it; and 2) those outstanding issues are not resolved by the judge as a matter of law prior to trial. Under this instruction, the elements of a contract are listed and what they mean are left to jury discretion. The next element of the instruction is, "The parties agreed to give each other something of value," and the last element is, "The parties agreed to the essential terms of the contract." The instruction, in simplest terms, further articulates Florida's objective theory of contract to tell the jury that the parties' intentions cannot be used to make this determination, only...