Most courts will not approve a jury charge until after the close of all evidence. Therefore, the charge conference will often take place once a jury has been dismissed for the day or prior to the time that a jury reports for the day. Lawyers should have the pattern jury charges on hand during the charge conference as well as copies of their proposed charge. Experience lawyers will also have a template of prior jury charges to help expedite the matter.
I. Cause of Action – Each cause of action pled by the plaintiff should be the subject of a jury question. The trend in recent years is for each respective side to produce a proposed jury charge as part of a Joint Pretrial Order. In the event any changes need to be made, a party may submit an amended jury charge. Regardless, the most recent jury charge on file is the one that will be taken up in the conference. Lawyers should be prepared to argue all aspects of the jury charge. While most jury instructions are form submissions, some jury questions require special instructions, which should be listed prior to the question. For large cases, have an appeals attorney to consult is wise.
II. Affirmative Defenses – If the defendant has pled affirmative defenses, it may be entitled to include a jury question on the defense to the charge. For insurance cases, the most common defense is that the insured failed to comply with policy provisions. Lawyers should know the case law related to any affirmative defense as well as under what circumstances the question should be allowed or removed from the charge.
As to the closing statement, an effective closing can tie together the entire case and make up for any momentum that may have been lost during the defendant’s case. Reserving some time from the closing statement to use after the defendant is definitely recommended.
I. Summarize the Facts – This is your last chance to speak directly to the jury before handling over the case for deliberations. By this point, the jury should know the facts and will probably have made up their minds as to who should win the case. It is important not to rehash the entire case, but be sure to go over all the key points and testimony of the witnesses that best help the case. The jury should also be made aware of how much your client will rely on them to make the right decision.
II. Explain the Charge – Because the jury charge is so crucial, lawyers must explain to the jury the best piece of evidence that proved your case for the causes of action listed. In the event the judge has allowed a question on an affirmative defense, advise the jury why the question should be answered against the defendant. Lawyers should not get lost in explaining every single detail of each question, as this will be done by the jury instructions. However, you should not be hasty in discussing the relevant aspects of the jury questions.