Giving the Jury Charge its Due

May 29th, 2018 By Sarah Scott


Texas Bar Today

It’s easy to understand why the poor jury charge so often gets short shrift in trials. Diligently preparing for witness examinations, checking and double checking exhibits, rehearsing your opening and closing statements until they are committed to memory but seem completely unrehearsed – all of these tasks are tremendously time-consuming. But (to borrow a football metaphor, this being Texas) lawyers who ignore the charge run the risk of fumbling at the one-yard line.

Why? Because the charge, unlike your masterful opening argument, actually goes back to the jury room. Done right, the charge can reinforce an argument that has been carefully structured and highlight themes you’ve presented throughout trial. Done wrong, it leaves the jury totally in the dark about what you’re asking them to do and cedes the narrative to the other side. Worse, error in the jury charge might mean that you have to do the whole trial over again, since it’s so much more likely than errors in other parts of the trial to require a new trial.

Here are some tips to getting the charge right, even if you’re armed with the most recent edition of the Texas Pattern Jury Charges.

1. Know the pleadings cold.

This one seems obvious, but after being involved in multiple jury trials it’s also a problem of surprising frequency. For example, if a plaintiff has used form pleadings and listed every possible type of damage, there may be multiple blanks they have failed to present evidence for. Similarly, you don’t want to get to a charge conference only to realize you didn’t plead contributory negligence. It’s vital to re-assess the pleadings as the trial progresses to determine which claims are going to stick – and which ones aren’t.

2. Understand what the disputed facts are.

This point is important for two reasons. First, it allows you to be more efficient and focused in your work; there is no need to develop evidence on employment status if everyone agrees that there is vicarious liability. More importantly, it allows you to save more time for the jury. Jurors appreciate when you respect their time by telling them about the questions they’ll actually need to answer, not when you waste hours developing expository information that serves no purpose. This also helps frame opening and closing arguments. Which leads to the next point.

3. Argue the charge during closing.

Again, something that should be obvious, but isn’t. Closing is your chance to help the jury make sense out of all the hours of testimony they’ve been sitting through. Themes and narratives are nice, but if you don’t tell the jury what you want them to write down on the charge, you’re missing a big opportunity to persuade them. Tell the jury what each question and damages blank actually means, and then tell them the evidence you presented (or that the other side didn’t) for each blank. That way, they go into the jury room with a ready justification for deciding in your favor. Be sure to answer each blank for each question with a brief summary of the evidence – one or two points are really all that’s necessary.

4. Know how to preserve error.

If the worst should happen and you end up having to present a charge to the jury that you know is wrong, don’t compound the issue by failing to preserve error. When it comes to charges, there are two avenues of preserving error: objections and requests. If you think the judge left out a relevant question, definition, or instruction, you’ve got to present a request for the missing question, definition or instruction in writing. Conversely, if you have a complaint about a defect in a question, definition, or instruction, you need to specifically object and describe the defect. This has to be done for each defect – no incorporation by reference or voluminous “form” objections are allowed. Finally, your requests and your objections must be separate.

Don’t be fooled – the jury charge can be one of the most challenging aspects of a jury trial. If the charge is well-thought-out and well-argued, though, it can also be one of the most effective tools to get the verdict you want.