Section 12.3 Writing the Instructions

• Library: Civil Trial Practice 2015 Supp

2. (§12.3) Writing the Instructions

The best article on writing jury instructions under MAI remains “Why and How to Instruct a Jury” by John C. Milholland (as revised and edited by Stephen H. Ringkamp), reprinted in Missouri Approved Jury Instructions p. LIX (6^th ed. 2002). It provides a detailed description of the considerations to be taken into account in this task.

The most important part of writing jury instructions is understanding the facts of the case and the applicable law. The facts, of course, dictate the legal theories that may apply, which, in turn, dictate what the jury instructions must be. MAI requires the submission of only the ultimate issues—not evidentiary detail. Even in the initial interview, counsel should begin to visualize what pieces of “evidentiary detail” supplied by the client will support what ultimate facts are to be submitted to the jury. Indeed, consulting MAI when writing the petition (or the affirmative defense) may be quite helpful in the drafting to ensure that all necessary elements of the cause of action are pleaded. It may also indicate the area in which further investigation is needed to provide the evidence necessary to support particular elements in the verdict-directing instruction.

In addition to introductory material applicable to all instructions in the preface, MAI has three useful sections following most of the pattern instructions:

1. The Committee Comments

2. The Notes on Use

3. Case citations for the particular instruction

The Committee’s Comments are not mandatory. Therefore, it is not presumptively prejudicial to fail to follow them. Nevertheless, the Committee’s Comments deserve careful consideration and generally should be followed. Peak v. W. T. Grant Co., 409 S.W.2d 58 (Mo. banc 1966); In re Estate of Passman v. Graves, 537 S.W.2d 380 (Mo. banc 1976); Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639 (Mo. App. W.D. 1997). The Committee’s Comments can be helpful when it is necessary to modify an existing MAI or to prepare a not-in-MAI instruction when circumstances warrant. The Comments, along with the case annotations, are also an excellent research tool to find quickly a line of cases dealing with the subject matter of a particular instruction.

The Notes on Use provide directions as to use, including modification of the instruction under certain circumstances, identification of terms for which definitions are required, and the selection of words or phrases in the preparation of the...