Take Charge Of Your Case: Using Early Preparation Of A Proposed Jury Charge To Drive Your Litigation

Remember that civil procedure professor from law school? The one who told you that, once the complaint and answer have been filed, your first job is not to answer interrogatories, schedule depositions or write reports to the client, but instead, to draft a proposed jury charge? Of course you don't. Or at least you don't follow her advice, and you are not alone. In a day and time when fewer and fewer cases ever make it to the jury room, preparing a proposed jury charge is at the bottom of most litigators' lists. It shouldn't be.

Preparing a proposed jury charge at the onset of litigation will help streamline your case – producing more consistent results and a more cost effective process for your client in the long run. You wouldn't set off on a cross country road trip without a map or, at a minimum, a reliable GPS app. The same principle applies to litigation. If the case is your journey and a good result for your client is your destination, then the charge is the guide that will get you there.

The Role of the Charge Pre-Trial

A proposed charge has several important uses pre-trial. First and foremost, preparing the charge forces you to evaluate the state of your live pleadings while there is still ample time to amend. Setting out the elements of each cause of action and defense may help you to see the potential flaws in a claim and, where fatal, eliminate such a claim before it wastes valuable time and resources. This exercise may also turn your mind to additional claims or defenses that did not present themselves initially, giving you the opportunity to include them before it is too late.

Perhaps the most overlooked use for the charge pre-trial, however, is as an outline for discovery. Particularly in complex litigation, it is easy to get caught up in boxes of documents and lose sight of what role, if any, that information will actually play in the trial of the case. Using your proposed jury charge as an outline will allow you to anchor the evidence – whether it be fact or opinion, testimonial or documentary – to the elements that you must actually prove, or alternatively disprove, to win. What better way to know exactly what to ask at a forthcoming deposition or what additional documents to request? At the same time, this exercise will shine a light on the holes in your opponent's case, allowing you to develop effective strategies to use those gaps to your client's advantage.

A proposed charge prepared early in the case will also assist in...