Section 12.10 Converse Instructions

• Library: Civil Trial Practice 2015 Supp

G. (§12.10) Converse Instructions

The primary reason for the existence of converse instructions arises out of the fact that the plaintiff bears the burden of proof. When the defendant does not submit an affirmative defense, the “defense” may be the nonexistence of one or more of the facts the plaintiff must prove. But in such a case, there would be no jury instruction to which the defendant’s counsel could point during closing argument that would direct the jury to return a verdict for the defendant. Thus, the converse instruction was born.

Examples of converse instructions are found in MAI Chapter 33. The instructions in that chapter are not, strictly speaking, mandatory as to form, but rather are illustrations of how converse instructions may be prepared. MAI allows two types of converse instructions: the “true converse” and the “affirmative converse.” The former is a dependent instruction because its language must track all or part of the plaintiff’s verdict director. The latter is an independent instruction because its language will require the jury to find a fact not mentioned in the plaintiff’s verdict director.

The “true converse” instruction uses the “unless you believe” format, and it must include one or more elements of the plaintiff’s verdict-directing instruction. The defendant has no burden of proof with respect to the true converse and does not need to offer any evidence to support it. The language used in the converse instruction should be taken directly from, and be the mirror image of, the language contained in the plaintiff’s verdict-directing instruction. This is true even when the verdict director being conversed is erroneous. Counsel should not be worried about waiver of objections to the plaintiff’s verdict director because Rule 70.02(d) specifically provides that requesting a converse instruction “shall not be deemed to waive any objection to the instruction conversed.”

When submitting a true converse, the defendant is entitled to converse as much or as little of the plaintiff’s verdict director as desired. Lietz v. Snyder Mfg. Co., 475 S.W.2d 105 (Mo. 1972). A converse instruction tells the jury that it should return a verdict for the defendant if it concludes that the plaintiff failed to prove certain elements of the case. When the verdict-directing instruction submits disjunctive specifications of negligence, a true converse of the specifications of negligence must converse each such specification. The reason is simple, but sometimes forgotten: The plaintiff wins if the jury finds any of the acts to be negligent—therefore, the defendant wins only if...