A fascinating and mysterious moment in a jury trial occurs at the very end, when the judge reads to the jury instructions summarizing the law that applies to the case. A trial lawyer has had years of legal education and law practice devoted to understanding how to apply law to fact, but s/he is not deciding the case. In a jury trial, it is the people in the jury box who must digest the facts presented at trial, understand the law that applies to the case and analyze what result to reach.
Unless a juror is an attorney, that juror’s entire legal education occurs at the end of the trial, when the judge spends some fifteen minutes reading the set of jury instructions, possibly in a monotone voice, with no question and answer session to follow. By that time, the jury has already heard opening statements, all of the evidence and possibly closing arguments. At that moment most jurors have probably formed a strong impression of the case, perhaps already decided how to vote.
Jury instructions are tactically very important, in that they provide the architecture for a lawyer’s closing argument and can become a key issue on appeal. However, no trial lawyer should wait for reading of the jury instructions to communicate to the jury the law that applies to the case.
I believe that most business cases are at bottom a morality tale, involving principles that all of us learned by the time we graduated from high school. This is the essence of the law of contracts: If you make a promise, keep it. This is the essence of the law of trust: If someone entrusts you with something, take good care of it and return it in the same condition. This is the essence of the law of fiduciary obligations: Treat others as you would treat yourself. This is the essence of the law of intellectual property: Don’t copy your classmates’ papers or project. This summarizes most principles of equity: Act with fairness and justice toward all. Those are all things we should have learned by the time we receive our high school diploma.
Another thing we all learned in high school is the five-paragraph expositive essay. In the introductory paragraph, we state the point of the essay and the three reasons supporting the point. The next three paragraphs state the three points. The concluding paragraph summarizes the point made. Stated another way: 1) tell ‘em what you’re going to say, 2) say it, and 3) tell ‘em what you just told ‘em.
Any presentation at trial should follow the construct of the five-paragraph essay. But how is the trial lawyer to communicate the law that will decide the case in the “first paragraph” — the voir dire of the jury and opening statements — when jury instructions are available only at the end of the trial? The law of the case should be boiled down to one or very few of the fundamental principles of conduct that all jurors should know, the principles that best summarize the offense or defense upon which the trial lawyer will rely in closing arguments.
In this fashion, as the trial proceeds, the jury will hopefully consider the testimony in light of the principles communicated early on, so that they grasp the ultimate point of the evidence. Then, when the jury instructions are finally read at the end of the case, the themes the trial lawyer communicated at the outset should appear familiar and resonate in the jury instructions.
Teach the jury the law that governs the case in the “first paragraph” of the trial. No essay without this first paragraph will earn a grade above a “C.”