Dallas Bar Association

Where Do I Start in Drafting a Civil Jury Charge

by Stacy Obenhaus

This article is what I wish someone had written for me 100 jury charges ago, before drafting my first charge, answering key questions like “where do I start?” and “what next?” There is no one way to do it, certainly, but here is what generally works for me.

First, gather the live pleadings; any summary judgment/dismissal orders; and discovery responses addressing damages theories (disclosures, expert reports, etc.). With these you can determine the range of possible claims, defenses and issues remaining for trial.

Second, determine what purpose your document will serve. Get the judge’s specific requirements, if any, from the court’s website or scheduling order. If the court ordered an exchange of drafts before trial, your task may simply be to get something resembling a charge to opposing counsel by the deadline. If the court wants a proposed joint charge to work on during trial, that may demand more effort. If the draft is for the charge conference, or if it is part of a pretrial order under Federal Rule of Civil Procedure 51, you need a very precise product.  In state court you might prepare the document following Texas Rule of Civil Procedure 276.

Third, if you are not the trial lawyer, talk to the trial lawyer about her theory of the case to further focus the submission.  For example, she might say that the only DTPA theory she will pursue is breach of warranty, or that of the nine defenses the answer asserts, only “waiver” should be submitted.

Fourth, outline the matters the charge will submit: (a) basic liability issues; (b) actual damages; (c) punitive damages issues—e.g., malice, amount, and intentional acts that “bust the cap;” (d) vicarious liability issues (agency, alter ego, conspiracy, etc.); (e) affirmative defenses, including issues of comparative responsibility; and (f) issues needed to support any requested equitable relief (e.g., the amount of restitution).

Each category has sub-categories. Thus, submitting malice might include instructions on when malice can be attributed to a corporate defendant. Comparative responsibility generally requires the submission of liability issues regarding third parties (e.g., settling defendants) as a predicate to apportioning responsibility to them.

Fifth, get the Texas Pattern Jury Charge (PJC) books and get at it. If you are drafting a proposal for the court, draft a complete “Charge of the Court” with verdict forms the judge could hand to the jury even if it includes only your client’s issues at this point. Number the submissions with headings identifying the issues. For example, for “breach of contract” the charge might start with a contract formation question, followed by a question on breach, then damages, etc.—like this: Question No. 1a [contract: formation], Question No. 1b [contract: breach], Question No. 1c [contract: damages] . . . For the next cause of action (e.g., fraud) do a “Question No. 2” series—and so on. Then you can add/delete questions from a series without having to renumber all questions in your entire document, which gets confusing.

Once you exhaust the PJCs, go to the relevant statutes or caselaw for your questions and instructions. This gets challenging, but a rule of thumb is to first trace that statutory or case language precisely and then modify it to eliminate “legalese” a jury may not grasp. Remember your goal: to ask the question(s) whose answer(s) will entitle your client to relief regarding the claim at issue, even if that relief is “plaintiff takes nothing.”

Submit only disputed fact issues. Thus, if Newco undisputedly failed to pay the contract price, you would not submit “did defendant fail to comply with the agreement,” when the only issue is whether any duty to pay was triggered. You might just need to ask: “Did plaintiff timely deliver the goods in accordance with the agreement?”

Once you have covered the basic issues for liability, damages, defenses and vicarious liability, clarify the submission. If four tort claims arise from one injury, you might submit one actual damages question conditioned on affirmative findings as to any one or more of the liability questions. You might submit respondeat superior issues by instruction rather than separate question—e.g., ask if Newco committed fraud and instruct that Newco is responsible for its officers’ conduct. Define technical legal terms. Check the conditioning language closely—then check it again!

Finally, show the draft to the trial lawyer (or someone who knows the case well) and refine it in light of the anticipated proof, balancing your case’s strengths and weaknesses against the need for a legally correct submission.

Deceptively simple, right? Good luck!


Stacy R. Obenhaus chairs the appellate practice group at Gardere Wynne Sewell and can be reached at sobenhaus@gardere.com

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