Special Recipe of a Successful Case – Q3 2022 Facts & Findings

Despite the expertise and effort of skilled support staff, investigators, and trial teams, courts scrutinize cases on appeal. In the face of increasingly tough legal review, effective trial teams should leverage the tool of jury instructions to strengthen their cases. Jury instructions provide helpful explanations of the law, are available online, and address key issues of both fact and law. This article addresses five specific reasons to use jury instructions and provides some practical tips on how to use them effectively.

Reason 1: Judges Value Instructions
All the hours and effort that teams put into building a case mean little if the evidence does not support a case that can prevail at trial and sustain the court’s review on appeal. The law determines what evidence matters in a particular case and on appeal. Judges decide what the law is in a case and they begin with the instructions. Trial teams should do the same.

Reason 2: Instructions Explain the Law
By design, instructions are phrased so that juries of American citizens can understand them. They are not drafted to require an expert understanding of the law. Staff developing a case can also benefit from the clear-cut phrasing of instructions as they strategize and build their cases, including trial preparation materials, binders, and presentations.

Reason 3: Instructions Create an Evidentiary Roadmap
At one time or another during a case, lawyers and support staff will review the elements of potential offenses, or the applicable civil instructions. Whether for civil matters, white-collar fraud, or other crimes, investigators tend to look up the elements of the statute for which they are investigating. However, jury instructions are like a topographical map with texture and layering, as opposed to the two-dimensional elements by themselves. By not only listing the offense elements but also providing clear and detailed explanations and references to relevant legal cases, jury instructions offer a much broader and deeper understanding of how to prove the case. Instructions put the “meat” onto the “skeleton” of the elements.

Reason 4: Lawyers Value Instructions
Attorneys and investigators often view cases differently, highlighting the importance of instructions. Investigators correctly identify the threshold of probable cause to charge or complaint. However, as with attorneys who have to carry the burden, prosecutors tend to review cases with an eye toward not only proving the elements but also persuading beyond a reasonable doubt. Prosecutors are more likely to have spent extensive time fighting in court, where the arguments move far beyond the elements to the nuances. Jury instructions provide critical details, show the perspective of the prosecutor, surface the weaknesses in a case, and reveal how to strengthen a position. Thus, instructions help all members of the legal team spot gaps, reinforce their points, and address the evidence that matters most.

Reason 5: Instructions Matter for Trials and Appeals
By maintaining awareness of the relevant instructions, teams will better anticipate lines of attack from opposing counsel, whether defense attorneys or otherwise. For example, if an instruction
defines intent in a particular way, looking for supporting evidence that meets intent based on that specific definition is paramount. Similarly, by using jury instructions early, trial teams can construct and approach their case in a way that anticipates questions and withstands scrutiny from the judge and jury during deliberations.

Paralegals can use a court map to locate the correct circuit and district court websites. Some sites, such as those of the Seventh Circuit Court of Appeals and Fifth Circuit Court of Appeals, contain links to instructions for all federal circuit courts. Paralegals should take time to familiarize themselves with their local jury instructions and review them regularly for updates. Online resources also exist to help locate state and local jury instructions.

Before diving into the many online jury instructions, there are some useful questions to address:

Who has jurisdiction?

While a jurisdictional question would typically arise at the outset of the case, the question of jurisdiction is also relevant to preparing jury instructions. It may sound obvious, but pulling jury
instructions from the Seventh Circuit on a case arising in the Fifth Circuit could lead to misunderstandings of the necessary elements and cost your client thousands of dollars for time spent in vain.

Who has the burden of proof ?

The burden of proof necessary in each case differs between civil and criminal cases. Civil cases are typically determined by the preponderance of evidence standard, which equates to more than
50%. In contrast, criminal cases require proof beyond a reasonable doubt, or roughly 95% certainty.

When are jury instructions important?

Jury instructions can matter early on during the fact-gathering process or investigation. However, in civil cases, paralegals can include jury instructions as part of their process for setting up
a new file and familiarizing themselves with the applicable case law. In criminal cases, it is important to understand the applicable jury instructions before discovery even begins. If you begin with
reading through discovery before understanding the criteria of a particular charge, you may overlook important details that could be detrimental to the case.

Jury instructions are relevant for the plaintiff/prosecutor and the defendant. The most valuable skill any paralegal can bring to a firm is the ability to apply the same analysis to the facts of the case no matter the party they are representing. The adage, “the best offense is a good defense” comes to mind in this context. Understanding that your case lacks a necessary element of proof can guide the evidentiary development going forward.

Scenario #1 White-Collar Crime
An Environmental Protection Agency (EPA) official is suspected of being offered lifetime family discounts on luxury clothing items at a family business in exchange for avoiding the inspection of certain family farms suspected of containing toxic chemical dumping sites. Application of Jury Instructions to Scenario #1 The online jury instructions for the Fifth Circuit Court of Appeals
(from which this case arises) online jury instructions show that 18 U.S.C. § 201(b)(1) prohibits bribery of a public official. From the instructions that the statute covers we learn that nominated public officials include those who have been officially informed that they will be nominated or appointed. First issue is determining whether the EPA official had been nominated or appointed and where he would be considered a public official. The second issue is whether inspecting the dumping sites would be an official act required of the individual. Last is determining whether the discounts were offered “corruptly” with an unlawful purpose, such as to hide illegal chemical dumping. In short, the instructions help paralegals and attorneys direct their attention to the issues that matter most.

Scenario #2 Employment Discrimination
An obstetrics practice is accused of employment discrimination for failing to hire a nurse on the basis that he is a male. The plaintiff claims that he had more experience than the other candidates and that the practice has not hired a male nurse in the last five years.

Application of Jury Instructions to Scenario #2
The online jury instructions for the Seven Circuit Court of Appeals ( from which this case arises) show that Title VII of the Civil Rights Act that discrimination based on all protected classes is
prohibited. It must be proven by a preponderance of the evidence that the plaintiff was not hired by the defendant because of his gender and that if the plaintiff had been a female, he would have
otherwise been hired by the defendant. The jury instructions also inform that the Seventh Circuit does not employ the “motivating factor” language that many of the other circuits use. In this
case, the instructions reveal that the plaintiff does not have to prove that his gender was a motivating factor in the defendant’s decision to not employ him because the male nurse alleged a
pattern of discrimination against males. The jury instructions show that he must prove by a preponderance of the evidence that gender discrimination was the defendant’s regular practice
rather than something unusual. Last, the issue of damages will have to be addressed.

A question that may arise is whether jury instructions matter if the case never goes to court. Because it is often impossible to know which cases will settle and when, paralegals and attorneys must prepare each case as though they will have to win at trial. Thus, the best practice is to identify the elements, central issues, and legally relevant facts early. In turn, knowing the elements and instructions will inform the approach to settlement, including an accurate assessment of the case’s merits. Whether you are defending or suing, knowing the instructions that would be given to the jury can be helpful in encouraging a settlement of a civil case before the cost of trial or advising your client to take a plea for less time or lesser fines.

By emphasizing only case law and the nuts-and-bolts of cases, paralegals might easily overlook the usefulness of jury instructions. Jury instructions are designed to help jurors and can be an
excellent way to find a concise and understandable summary of the law that judges trust. By using the instructions, paralegals will have a better command of exactly what the judge will tell the jury
to consider in reviewing the evidence. In sum, because paralegals put precious time, billable hours, and extensive efforts into each case, they should use jury instructions to plan and prioritize for
the best possible outcome for their client.

  1. “Geographic Boundaries of United States Courts of Appeals and United States District Courts,” accessed May 11, 2022,
  2. For the Seventh Circuit Court of Appeals’ jury instructions, see “Our Recommended Web Sites,” Library of the U.S. Courts of the Seventh Circuit, accessed December 1, 2020, http://
    www.lb7.uscourts.gov/reflinks.html#fedpatji. For the Fifth Circuit Court of Appeals’ jury instructions, see “Federal Jury Instructions,” United States Court of Appeals Library for the
    Fifth Circuit, accessed December 1, 2020, http://www.lb5.uscourts.gov/juryinstructions/.
  3. “State Jury Instructions,” Library of the U.S. Courts of the Seventh Circuit, accessed December 10, 2020, http://www.lb7.uscourts.gov/reflinks.html#stji.
  4. Committee on Pattern Jury Instructions, District Judges Association, Fifth Circuit, Pattern Jury Instructions (Criminal Cases), 2019 ed., accessed December 3, 2020, http://www.lb5.
  5. United States Court of Appeals for the Seventh Circuit, Pattern Jury Instructions, accessed May 11, 2022.
  6. https://www.ca7.uscourts.gov/pattern-jury-instructions/pattern-jury.htm. Resource for several court’s jury instructions: http://www.utcourts.gov/committees/muji/links.pdf
  7. Federal Civil Jury Instructions of the Seventh Circuit, accessed May 10, 2022, https://www.ca7.uscourts.gov/7thcivinstruc2005.pdf

Author(s) Biography:

Dillon Fishman, an attorney and a Marine Corps judge advocate for more than 15 years, has worked for five federal agencies. All views are personal and do not reflect the position of any government agency.



Desiré Smith is a Certified Paralegal at Vowels Law in Henderson, Kentucky. Smith uses her knowledge and experience to assist clients litigating cases, primarily in federal black lung claims. She has experience in personal injury, veterans’ compensation, contracts, tort law, family law, expungements, estate planning, and equine law related to disputes of ownership. Smith has worked as a paralegal since 2013. She earned a Paralegal Studies degree from Daymar College of Owensboro, in an American Bar Association-approved program, graduating cum laude. Desiré has been a member of NALA since 2019 and recently joined the Continuing Education Council.