Section 12.8 Verdict-Directing Instructions

• Library: Civil Trial Practice 2015 Supp

E. (§12.8) Verdict-Directing Instructions

The verdict-directing instructions in MAI Chapters 17–31 and 37 apply in approximately eighty percent of all cases tried. Rather than provide a detailed analysis of each instruction, this section discusses some of the more common drafting errors and how they may be avoided.

It is extremely important to proofread instructions carefully before their submission. When preparing jury instructions, there is no such thing as “too much” proofreading. The pitfalls of failing to pay attention are illustrated in Vancil v. Carpenter, 935 S.W.2d 42 (Mo. App. W.D. 1996). Vancil was a will contest action in which the trial court inadvertently gave the jury an incorrect verdict form (the opinion incorrectly called it the “verdict director”) asking it to decide whether a 1990 will was the last will and testament of the decedent. But the will at issue was a 1993 will. Fortunately, the trial court caught the error when the verdict was returned and sent the jury back with the correct verdict form. Many of the more common errors that could have been detected and corrected by careful proofreading are:

Omission of “and” between paragraphs of verdict directors and affirmative defense instructions. See Jenkins v. Keller, 579 S.W.2d 166 (Mo. App. S.D. 1979); Kirkendall v. Townsend, 559 S.W.2d 561 (Mo. App. E.D. 1977); Wilkerson v. State Farm Mut. Auto. Ins. Co., 510 S.W.2d 50 (Mo. App. S.D. 1974); Holt v. Myers, 494 S.W.2d 430 (Mo. App. E.D. 1973); but see Goff v. St. Luke’s Hosp. of Kansas City, 753 S.W.2d 557 (Mo. banc 1988) (no prejudicial error in omission of “and” between paragraphs when juror of average intelligence would not be misled or confused).

Use of “or” instead of “and” between paragraphs. See Quality Dairy Co. v. Openlander, 456 S.W.2d 608 (Mo. App. E.D. 1970).

Definition of a term that does not appear in the instructions or failure to define a term that does appear in the instructions.

Failure to identify the parties by name or other descriptive term. For example, in Denny v. Mathieu, 452 S.W.2d 114 (Mo. banc 1970), it was held reversible error to submit the conduct of the “defendant” instead of the conduct of the driver, when the suit was brought against the employer of the driver. Also, when there are multiple parties, they must be identified by name.

Failure to modify affirmative defense and converse instructions, when the plaintiff submits multiple theories of recovery against the defendant, by changing the first line...