A General Overview of Jury Instructions and Verdict Forms in Civil Cases in Oklahoma
By Sharon Thomas

Proper jury instructions are essential to a party’s case. “Instructions are explanations of the law of a case which enable a jury to understand its duty and to arrive at a correct conclusion.”1 The failure to request an instruction on a key element or affirmative defense may result in the loss of the lawsuit. One of the first things that should be done in working on a lawsuit is to draft jury instructions setting out the key elements of the plaintiff’s claims and the defendant’s affirmative defenses.

This early preparation will provide you with the guideline for the type of evidence you will need to present at trial and it will focus your efforts in discovery. It also will assist both parties during negotiations, especially in mediation, and will help in explaining the issues to clients.

In Oklahoma state courts, jury instructions are governed by Okla. Stat. tit. 12, §§ 577, 577.2, 578 and 582. In federal court, jury instructions are governed by Fed. R. Civ. P. 51. In both state and federal court, the authorities supporting each requested instruction should be set forth at the end of each requested instruction.

Under Okla. Stat. tit. 12, § 577.2, the Oklahoma courts are to use the Oklahoma Uniform Jury Instructions, unless the court determines that those instructions do not accurately state the law or when the uniform instructions do not contain an instruction on a subject. The Oklahoma Uniform Jury Instructions do not cover all causes of actions and defenses. For example, the Oklahoma Uniform Jury Instructions do not include instructions governing nuisance. In the absence of a uniform instruction, it will be necessary to draft an instruction using the elements for the cause of action or defense as provided in the statutes and/or case law. You can sometimes find jury instructions that the Oklahoma Supreme Court approved and that are quoted verbatim in the court’s opinion. Even when there are uniform instructions that cover the issues in your case, it is advisable to research the case law to determine whether there are definitions or favorable characterizations of certain elements pertaining to issues in your case that the uniform instructions do not fully cover.

In federal court, there are several publications with suggested jury instructions. One such publication is West’s Federal Jury Practice and Instructions, which contains instructions that cover most federal claims. However, if your case in federal court is based on diversity jurisdiction, you need to draft your substantive instructions using the applicable state law. It also may be helpful to obtain a set of instructions that the court has previously given in similar claims. You can find these past instructions by asking the judge’s law clerk for the case numbers of prior lawsuits in which the court gave similar jury instructions or by searching the online Pacer system at http://pacer.psc.uscourts.gov.

In lengthy or complex cases, you need to consider whether it will be helpful to ask the court to give the jury “preinstructions” prior to opening statements and the presentation of evidence. Preinstructions can include a general overview of the issues in the case and rudimentary definitions of key terms. Courts and commentators have suggested that preinstructions serve the interests of justice by focusing the jury’s attention on the issues in advance so that they can more effectively integrate the evidence they hear as the case progresses.2 However, instructing the jury on a matter not supported by the evidence may constitute reversible error.3 Therefore, the preinstructions must be carefully drafted so as to limit the information provided to only those matters that are certain to be properly submitted to the jury.

Objections to the court’s instructions or to the court’s refusal to give a requested instruction must be made on the record at trial.4 Under Okla. Stat. tit. 12, § 578, the objections are to be made in open court, outside the hearing of the jury, after the instructions are given to the jury, and the party must recite the particular number of the instruction that was given over the party’s objection or the particular number of the instruction that was requested by the party, but refused by the court.5 Where an objection is not made, any error in the instructions is waived unless the party can establish “fundamental error.” Fundamental error has been defined as error that “compromises the integrity of the proceeding to such a degree that the error has a substantial effect on the rights of one or more of the parties.”6 With respect to instructions, fundamental error occurs if an instruction, on its face, did not correctly state the law.7 An instruction that did not accurately reflect the issues tendered by the evidence does not constitute facial or fundamental error.8

Similarly, in federal court, under Fed. R. Civ. P. 51(c) and (d), a party is required to state, on the record, its objections to the court’s jury instructions and the grounds for the objection. Under the same rule, in order to raise error in the failure to give an instruction, the party must have requested the instruction and must have objected, on the record, to the failure to give the requested instruction, stating the grounds of the objection. The ground for the objection must be stated plainly, or it must be obvious and unmistakeable. A vague or general objection is insufficient.9 As in state court, a failure to properly object will waive the objection, unless there is “plain error,” which is equivalent to “fundamental error” in Oklahoma.10 Plain error is error that is clear or obvious under the law and which affected a party’s substantial rights and seriously affected the fairness, integrity or public reputation of the proceedings.11

Verdict Forms

General and special verdicts are governed by Fed. R. Civ. P. 49 in federal court and by Okla. Stat. tit. 12, §§ 587 — 589 in Oklahoma state courts. A general verdict is one that provides for the jury to find in favor of one party or the other.12 A special verdict consists of written findings on each issue of fact.13 An example of a special verdict is one relating to comparative negligence, where the jury is asked to find which parties are at fault, to allocate the fault between the parties, and to find the amount of damages, and the judge is to enter judgment according to the jury’s findings.14

Under Okla. Stat. tit. 12, § 588, all verdicts are to be general, but they may be accompanied by special findings of fact made by the jury. Okla. Stat. tit. 12, § 589 provides that when special findings of fact are inconsistent with the general verdict, the special findings control “and the court may give judgment accordingly.”

It is ordinarily in the plaintiff’s best interest to use a general verdict form because the appellate court will not speculate as to the basis of the jury’s verdict. Defendants, however, should consider requesting special verdict forms, special interrogatories accompanying a general verdict form, or general verdict forms on each cause of action. The purpose of such forms would be to enable the parties and the court to determine the specific findings or basis of the jury’s award and to be able to more easily challenge the judgment on appeal if any of those findings are not supported by the evidence.15

In Oklahoma state court, an objection to the “form” of the verdict submitted to the jury must be made at trial and is waived if raised for the first time in a motion for new trial unless there is fundamental error.16 Also, the court, if faced with the issue, may hold that an objection to the “form” in which the verdict was returned by the jury is waived if the error could have been corrected by amendment and if an objection was not made before the jury was discharged.17 The Oklahoma appellate courts have not addressed the issue of waiver of inconsistencies between verdicts or within a special verdict form.18 However, objections to inconsistencies in the verdict have been permitted to be raised for the first time on appeal or in post-trial motions for new trial and motions for judgment notwithstanding the verdict.19 If there appears to be an inconsistency on the face of the verdict that could be corrected by resubmitting the verdict form to the jury, it is recommended that an objection be raised before the jury is discharged to ensure that the error is preserved for appeal.

In federal court, if there is a problem on the face of the verdict, such as where the jury failed to complete portions of the verdict form or to answer special interrogatories, or where the verdict is ambiguous, the party must object and request that the issues be resubmitted to the jury before the jury is discharged; otherwise, the error is waived.20 A post-trial motion is too late. An objection to inconsistency in a special verdict may be raised in a post-trial motion after the discharge of the jury.21 However, an objection to inconsistent general verdicts or to inconsistencies between a general verdict and the jury’s answers to interrogatories must be made before the jury is discharged so that the issues may be resubmitted to the jury. If such an objection is not made before the jury is discharged, the error is waived, “unless the verdict is inconsistent on its face such that the entry of judgment upon the verdict is plain error.”22 The U.S. Court of Appeals for the 10th Circuit has held that general verdicts that resolve separate and distinct causes of action in favor of both parties are not inconsistent on their face, but that where several causes of action are identical and defended on the same ground, a verdict for the plaintiff on one cause of action and for the defendant on another is inconsistent.23

Drafting jury instructions and proposed verdict forms at the beginning of your lawsuit will assist you throughout the various stages of the litigation. It will enable you to focus on the elements of proof that will need to be met and to marshal your efforts toward those ends, particularly in discovery. The instructions that are drafted at the beginning of the lawsuit, along with the legal authorities cited to support those instructions, can be used in briefing and will enable you to determine if the case is appropriate for a dispositive motion. Determining the elements of the claims and defenses will also allow you to analyze the strengths and weaknesses of your case.

1. Johnson v. Ford Motor Co., 2002 OK 24, ¶ 9, 45 P.3d 86, 90.
2. See W. Schwarzer, Reforming Jury Trials, 132 F.R.D. 575, 583 (1991) (“The case for giving the jury preliminary instructions at the start of the trial is compelling. . . . [N]ot giving preinstructions is like telling the jurors to watch a baseball game and decide who won without telling them the rules until the end of the game.”); F. Strier, The Road to Reform: Judges on Juries and Attorneys, 30 Loy. L.A. L. Rev. 1249, 1256 (April 1997) (benefits of preinstructions include enhancing juror recall, improving juror integration of law and facts, creating more informed verdicts, and increasing juror satisfaction); M. Frankel, A Trial Judge’s Perspective on Providing Tools for Rational Decisionmaking, 85 Nw. U. L. Rev. 221, 225 (Fall 1990) (“There is no question in my mind that providing jurors with additional tools such as preliminary instructions . . . enhances the rational aspects of the jury’s fact-finding role.”); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666 n. 7 (1989) (in a defamation case, the court can prevent juror confusion by tructing the jury “‘in plain English’ at appropriate times during the course of the trial . . . .”); Tavoulareas v. Piro, 817 F.2d 762, 807 (D.C. Cir. 1987) (Ruth Bader Ginsburg, J., concurring) (“The challenge for the trial judge demands attention throughout the proceedings. It is not met by allowing the jurors to listen, without education, as the evidence unfolds and then submitting the case for their general verdict after ‘dous[ing] [them] with a kettleful of law during the charge that would make a third-year law-student blanch.’”) (quoting Skidmore v. Baltimore & O.R.R., 167 F.2d 54, 64 (2d Cir.)).
3. See Digital Design Group Inc. v. Information Builders Inc., 2001 OK 21, ¶ 36, 24 P.3d 834, 845.
4. See Sullivan v. Forty-Second West Corp., 1998 OK 48, 961 P.2d 801.
5. The requirements of Okla. Stat. tit. 12, § 578 have been stated to be mandatory. See Sullivan, supra, ¶ 5, 961 P.2d at 802; Sellars v. McCullough, 1989 OK 155, ¶ 6, 784 P.2d 1060, 1062. But see Johnson v. Ford Motor Co., 2002 OK 24, n.8, 45 P.3d 86, 90 (objections to instructions were properly preserved where the party, although not following the steps set forth in § 578, apprised the court of its objections and gave the trial court an opportunity to correct its mistakes).
6. Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶ 7, 961 P.2d 801, 803.
7. See Sellars, supra, ¶ 9, 784 P.2d at 1062-1063.
8. See Sellars, supra.
9. See Reed v. Landstar Ligon Inc., 314 F.3d 447, 452 (10th Cir. 2002); Medlock v. Ortho Biotech Inc., 164 F.3d 545, 553 (10th Cir. 1999), cert. denied, 528 U.S. 813 (1999).
10. Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1179 (10th Cir. 2005); Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1190 (10th Cir. 1997).
11. See Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1180 (10th Cir. 2005); Hardeman v. City of Albuquerque, 377 F.3d 1106, 1118 (10th Cir. 2004).
12. Id. at 1143.
13. See Johnson v. ABLT Trucking Co., 412 F.3d 1138, 1142 (10th Cir. 2005). In federal court, a jury may also return a general verdict accompanied by answers to interrogatories. Id.
14. Id. at 1142.
15. See Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1319 (10th Cir. 1998) (party who did not object to verdict form that provided only one space for the jury to award actual damages and who did not request a verdict form that divided damages between tort and contract claims waived any error and any claim of ambiguity as to whether punitive damages were properly awarded); AG Services of America v. Nielsen, 231 F.3d 726, 731 (10th Cir. 2000), cert. denied, 532 U.S. 1021 (2001) (in discussing binding effect of a general verdict in determination of equitable claims in the same case, the court stated: “[W]e must consider what findings are explicit or necessarily implied by the verdict, including examining alternative bases by which the jury could have reached its conclusion.”); Eversole v. Oklahoma Hospital Founders Ass’n, 1991 OK 80, ¶ 18, 818 P.2d 456, 461 (argument that verdict finding negligence of hospital was inconsistent with the verdict exonerating the hospital’s nurse was not inconsistent with the evidence, the court pointing out that “[t]here was no request for special findings by the jury,” and that the court “will not reverse a jury verdict if supported by the evidence on any theory of law.”). But see Digital Design, supra, ¶ 37, 24 P.3d at 845 (giving jury instructions that did not distinguish between contract and libel damages was reversible error where the evidence did not support a contract claim and where it was impossible from the verdict form to determine which damages were attributed by the jury to each claim).
16. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 12, 107 P.3d 595; Medlock, supra, 2005 OK CIV APP 72, ¶ 14, 122 P.3d at 888.
17. See Okla. Stat. tit. 12, § 586.
18. Cf. G.H.K. Co. v. Janco Investments Inc., 1987 OK CIV APP 68, ¶ 9, 748 P.2d 45 (court held that an “inconsistency” within a single, general verdict form was not waived by a failure to raise the issue until a post-trial motion); Irwin v. SWO Acquisition Corp., 1992 OK CIV APP 48, ¶ 5, 830 P.2d 487 (court held that “inconsistency” within a single, general verdict form was waived by raising the issue for the first time in a motion for new trial).
19. See Strong v. Allen, 1989 OK 17, 768 P.2d 369 (no mention of issue having been raised prior to the appeal); Wright v. Central Oklahoma Milk Producers Ass’n, 1973 OK 15, 509 P.2d 464 (motion for new trial); Baker v. Locke Supply Co., 1987 OK 27, 736 P.2d 155 (motion for new trial).
20. Hess Oil Virgin Islands Corp. v. UOP Inc., 861 F.2d 1197, 1203 (10th Cir. 1988) (unanswered interrogatories); Okland Oil Co. v. Conoco Inc., 144 F.3d 1308 (10th Cir. 1998) (ambiguous verdict); Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1191-92 (10th Cir. 1997).
21. See Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1274-75 (10th Cir. 2005) (motion to alter or amend judgment); Johnson, 412 F.3d at 1140 (motion for new trial); Bonin v. Tour West Inc., 896 F.2d 1260, 1263 (10th Cir. 1990) (motion for new trial); Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 851 (10th Cir. 2000) (motion for judgment as a matter of law).
22. Johnson v. ABLT Trucking Co., 412 F.3d 1138, 1141-42 (10th Cir. 2005). Id. at 1141, quoting Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1545 (10th Cir. 1993).
23. Diamond Shamrock Corp. v. Zinke & Trumbo Ltd., 791 F.2d 1416, 1424-25 (10th Cir. 1986), cert. denied, 479 U.S. 1007 (1986). Cf. Oja v. Howmedica Inc., 111 F.3d 782, 791 (10th Cir. 1997) (court found a verdict for plaintiff in negligence and for defendant in strict liability inconsistent on its face, despite the facial differences between the causes of action, because the only two elements contested at trial, product defectiveness and injury causation, “were common to all of Oja’s claims.”).

About The Author

Sharon Thomas is a shareholder with Hall, Estill, Hardwick, Gable, Golden & Nelson PC in its Oklahoma City office. She received her J.D. from OU in 1981, and her primary areas of practice are appellate, oil and gas, and energy law.

A General Overview of Jury Instructions and Verdict Forms in Civil Cases in Oklahoma
Published 79 OBJ 503 (March 8, 2008)