As a young trial attorney, I hated jury instructions. My first seven jury trials were Medical Malpractice cases.  As a brand-new lawyer, I found jury instructions very intimidating and unclear. I disliked formulating jury instructions, and I disliked trying to explain them to the jury even more.  However, after 20 years of practice, jury instructions now appear basic.

Twenty years later, my view of jury instructions has changed.  It took me a while to “make friends” with jury instructions (so to speak) when I started defending more general liability and transportation cases.  Looking back, I wish I could tell “twenty-years ago Holly” what Albert Einstein would have said about jury instructions: “If you can’t explain it simply, you don’t understand it well enough.”

As to jury instructions, and as Einstein suggests as to any material, true understanding involves grasping the fundamental principles and explaining them in a manner easily relatable to jurors.  Step one to successfully weaving the law into your voir dire, opening statement and closing argument is understanding what jury instructions mean.

At the outset of your case, and as you go through the discovery process, ensure that you have read and understand the operative jury instructions applicable to your case. Otherwise, how will you explain them to jurors in plain English and persuade them the law is on your side.

After years of jury trials repeatedly using both the Florida model jury instructions and special instructions written in complex cases, I’ve learned how to use jury instructions throughout the trial to compel the jury to apply reasonableness and common sense in its decision-making process.  Jury instructions can be used to address the concept of personal responsibility.  They can even help personalize your corporate defendant: even if the defendant is an insurance company!

For those of you who are newer to trial, or who have yet to form a strong relationship with your model jury instructions, I offer a few tips regarding the utilization of key jury instructions to convey your theme and persuade jurors.  I’ve borrowed song, movie and philosophical quotes from some of my favorite musicians and philosophers (aren’t they really the same thing?) to make this more fun.  So, in the words of Teddy Swims, “walk this walk, you need no boots”[i]…..explain the law so the jury can understand you.

The evidence before the court is incontrovertible.[ii]

Explaining Burden of Proof – 401.3 Greater Weight of The Evidence

“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in this case.

In civil cases, it is important for both sides to dive into the burden of proof during jury selection.  The plaintiff’s counsel often uses the “tipping the scales with just a grain of sand” explanation to illustrate the burden of proof is basically “nothing” in a civil case. The defense must pick that apart.

In jury selection, ask the panel, “If you were to render a verdict right now, who would win?”  The answer must be “the defense” because there has been no evidence presented.  Also, it is important for the defense to highlight some of the words in this instruction.  For example, “Greater Weight” should mean more than a “grain of sand.” Also, “persuasive” and “convincing force” when read to the jury will help jurors understand the plaintiff must prove his or her case.

Clint Eastwood said, “I tried being reasonable.  I didn’t like it.”[iii]

Explaining that The Standard Is Reasonable – Not Perfect 401.4  Negligence

Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.

Although everyone knows Clint Eastwood is awesome based on his dislike of being reasonable, he would not be effective at explaining the standard jury instruction on negligence.  Why? Because the standard is reasonable, not superior, perfect, wonderful or special – it’s reasonable.  It’s important to introduce this concept “reasonableness” to the jury during voir dire (often bundled with common sense) and emphasize it in your opening statement, throughout your presentation of evidence, and in closing argument.

Two good questions during voir dire are: “Do any of you think that you are perfect?” and “Do you expect others to be perfect?” Flesh out the concept of reasonableness early. Then, be sure to take reasonable positions throughout the trial so you can emphasize the point.  For example, admit facts that are true and don’t take unreasonable positions as to the evidence.

In terms of how to explain this jury instruction in your opening and/or closing, I recommend placing a slide with this instruction in the presentation nearest to a slide with evidence showing the plaintiff taking an unreasonable position.  It provides emphasis when the plaintiff is overreaching.  By the end of the case, you want the jury believing you, your co-counsel, and your client are the most reasonable people in the room.

I fell so hard I was seeing stars, dollar signs, and men from Mars.[iv]

Just Because There Was an Accident Doesn’t Always Mean There Was an Injury (or a Serious One) – 401.12 Legal Cause

Many defense attorneys like to discuss only section A (“Legal Cause Generally”) of the legal cause model jury instruction.  We all remember the standard “but for” test from law school and we can usually find a way to weave this instruction into opening and closing in a way that is persuasive.

Section A, Legal cause generally, reads as follows:

Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.

 Some key words in this instruction are very important and are worthy of emphasis. The defense should be ready for the plaintiff’s counsel to focus on the fact negligence must be “a” cause of injury and not “the” cause of injury.  They will emphasize this to convince the jury that if the accident contributed to the claimed injury in even the tiniest of ways, they should find there was legal cause and therefore award the plaintiff all the damages in the world.  The defense must focus on the word “substantially.”  Consider asking in jury selection, “What does the word ‘substantial’ mean to you?”  In opening and closing, use the word “substantial” while presenting slides with evidence supporting your position that the accident did not “contribute substantially” to what is claimed.

Don’t ignore section B of this instruction or pretend like it doesn’t exist….

I fought the law and the law won.[v]

Section, B, the dreaded Concurring cause instruction, states:

In order to be regarded as a legal cause of loss, injury or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury or damage even though it operates in combination with the act of another, some natural cause or some other cause if the negligence contributes substantially to producing such loss, injury, or damage.

Once again, the plaintiff will focus on the word “a” and say the defendant’s negligence must be “a cause and not the cause.”  Second, the plaintiff will likely read loudly to the jury the phrase, “need not be the only cause.”  They will take the position that preexisting conditions, subsequent accidents, and co-morbidities don’t matter at all and their client should get all the damages in the world.

Do not ignore this instruction or pretend it doesn’t exist.  Lean into this instruction!  Pair this instruction with testimony and records and focus on “contributes substantially.”  If you ignore this instruction and let the plaintiff’s counsel explain it, you miss the opportunity to establish the instruction is consistent with your themes. By ignoring it, you will lose a lot of ground.

The Dreaded Aggravation Instruction: It’s Not Right, But It’s Ok.[vi]

It’s Not a Get out Of Jail Free Card for The Plaintiff on Burden of Proof – 501.5  Other Contributing Causes of Damages

In Florida, if you took a poll of defense attorneys handling personal injury claims as to their least favorite jury instruction, this one would win.  All.  Day.  Long.

The plaintiff’s bar’s favorite instruction, Aggravation or activation of disease or defect, reads as follows:

If you find that the Defendant caused a bodily injury, and that the injury resulted in an aggravation of an existing disease or physical defect or activation of a latent disease or physical defect, you should attempt to decide what portion of Plaintiff’s condition resulted from the aggravation or activation. If you can make that determination, then you should award only those damages resulting from the aggravation or activation. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by Plaintiff.

This instruction will appear on a big slide in the power point of every personal injury plaintiff’s attorney.  They will say, “Sure my client had some preexisting conditions, but there is no way to apportion what part of their current condition relates to the prior injuries as compared to the accident – so you have to award it all.”  Contrary to what the plaintiff’s bar would love all juries to believe, this is not a get out of jail free card.

We cannot ignore this instruction which is unfriendly to the defendant. In relation to “activation” and “aggravation”, many plaintiffs will argue even though they had a disk herniation on their MRI as dried out and crusty as a potato chip, they never had pain before the accident and that this event turned on the pain like switching on a lightbulb. Your experts must be prepared to give you the testimony you need to explain this instruction during closing and to apply the facts to the law.

You must have an understanding of this instruction when crafting your cross-examination of the opposing experts.  Also, have this instruction burned into your brain when reviewing medical records so you can focus on prior and unrelated records to help you explain how the plaintiff’s theory relating to “activation “or “aggravation” is not reasonable and not supported by the facts.

You should be able to present evidence that helps a jury apportion what part of the injury does and does not relate to the accident.  Use the evidence when discussing the jury instruction. Although not favorably worded for, or helpful to, the defense, if handled correctly, you can point out it is not a “golden ticket” for the plaintiff and, once again, show you are the most reasonable person in the room.

“Common Sense is genius dressed in its working clothes.”[vii]

601.1 Weighing the Evidence – This Instruction Is Long, Focus on Common Sense

The Florida model jury instruction on weighing the evidence states in part: “You may use reason and common sense to reach conclusions.”

The plaintiff will hammer this instruction in voir dire, opening and closing and take the position that the accident is the obvious cause of all the injuries and that their theories are consistent with common sense.

It is critical for the defense to weave the core theme of common sense into all phases of your trial presentation and use the instruction to show your theme is supported by the law.  When crafting your opening statement and closing argument, consider the best location for the common sense instruction.  Is it right after you show photographs of a barely damaged vehicle?  Could it be after you discuss the plaintiff’s expert witness who was paid $35,000, did very little work and delivered opinions that were, at best, “ a stretch?”  Choose a portion of your presentation where it will put an exclamation point on your message.

I’d Lie For You (And That’s The Truth).[viii]

Illustrate Witness Bias and How They Have “skin in The Game” – 601.2  Believability of Witnesses

In any civil trial, witness testimony is a large portion of the evidence.  We use witnesses to discuss documents that go into the jury room and to explain why those documents are consistent with our theory of the case.

The instruction on believability of witnesses reads in part:

In  evaluating the believability of any witness and the weight you will give the testimony of any witness, you may properly consider the demeanor of the witness while testifying; the frankness or lack of frankness of the witness; the intelligence of the witness; any interest the witness may have in the outcome of the case; the means and opportunity the witness had to know the facts about which the witness testified; the ability of the witness to remember the matters about which the witness testified; and the reasonableness of the testimony of the witness, considered in the light of all the evidence in the case and in the light of your own experience and common sense.

It makes sense to insert this instruction into your opening and closing when you talk about witness testimony.  Our favorite words “reasonableness” and “common sense” appear in this instruction. We can use it to emphasize those core themes.

We can also weave in “lack of frankness” to highlight a witness who was impeached 25 times; or “interest in the outcome of the case” to discuss the plaintiff, their family members, or perhaps a doctor with a big “letter of protection.”  If a witness had “selective memory,” we can use this instruction to highlight that for the jury.  Again, use the instructions to put an exclamation point on your themes.

All this sympathy is just a knife[ix]

(so are ANGER and FEAR)

If the Jury Is Looking at Plaintiff’s Counsel Like “You’ve Got Me Feeling Emotions” – That’s Not Good:  700 – Closing Instructions – Sympathy

The plaintiff’s bar does its best to see that juries make their decisions based on anger, fear, or emotion. It is crucial for the defense to bring the jury back to the evidence, common sense, and reason.  We should use the sympathy instruction in voir dire and throughout the case to help personalize the defendant and to bring the jurors back to their obligation to follow the law and to avoid making decisions based on emotion.

The closing instruction is lengthy and contains the following statement regarding sympathy or bias:

In reaching your verdict, do not let bias, sympathy, prejudice, public opinion, or any other sentiment for or against any party influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.

This is one of the instructions plaintiff’s attorneys may ignore.  Good ones will say, “We don’t want or need your sympathy as the evidence supports our case.”  The defense must weave this instruction into jury selection when talking about your client.

For example, if you are representing an insurance company, you might ask, “Have any one of you at any time in your life felt sorry for an insurance company?”  It may be seen as a ridiculous question that generates some laughs.  However, point out to the jury that the defendant is entitled to the same application of the law as is the plaintiff.  Also, consider incorporating this instruction when you tell your client’s own story.

This instruction can be useful in pointing out when the plaintiff’s counsel is trying to make the jury angry or emotional.  Show jurors the instruction and bring them back to the evidence, common sense, and reason.  As with the other instructions, choose where to place this instruction in your presentation based on how the evidence has come into the case and where it will have the most impact.

Takeaways

We may all agree that jury instructions are too long and can be boring. They aren’t worded clearly for a lay person to understand them without help.  That said, be reassured: (1) Jury Instructions can be your friend; (2) Embrace your perceived weaknesses, and work with them; (3) Do not ignore the law – if you do, the other side won’t.

Like Chappell Roan (one of my favorites!) sings, “It’s fine, it’s cool, you can say… [jury instructions]… are nothing, but you know the truth…”[x]  During your next trial, use your jury instructions to put an exclamation point on your case themes.  Good Luck Babe!

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Sources

[i] Swims, T., Jones, C., & GloRillo, “She Got It.” I’ve Tried Everything But Therapy (Part 2), Warner Records, 2025, audio recording.

[ii] Pink Floyd, “The Trial.” The Wall. Columbia Records, 1979, audio recording.

[iii] Sudden Impact, directed by Clint Eastwood (Burbank, CA: Warner Bros., 1983), DVD. Quoted line: “I tried being reasonable, I didn’t like it.”

[iv] Chuck Brodsky, “Talk to My Lawyer”, Letters in the Dirt, Red House Records, 1996, audio recording.

[v] The Bobby Fuller Four, “I Fought the Law.” I Fought the Law. Mustang Records, 1966, audio recording.

[vi] Whitney Houston, “It’s Not Right But It’s Okay,” My Love is Your Love, Arista Records, 1998, audio recording.

[vii] Ralph Waldo Emerson, Society and Solitude, in The Collected Works of Ralph Waldo Emerson, vol. 7, ed. Ronald A. Bosco and Douglas Emory Wilson (Cambridge, MA: Harvard University Press, 2007), 103.

[viii] Meat Loaf, “I’d Lie for You (And That’s the Truth),” Welcome to the Neighborhood, MCA Records, 1995, audio recording.

[ix] Charli XCX, “Sympathy is a Knife,” Brat, Atlantic Records, 2024, audio recording.

[x] Chappell Roan, “Good Luck, Babe!” Good Luck, Babe!, Amusement Records/Island Records, 2024, audio recording.