Jury instructions shouldn’t be an afterthought. There’s a reason why many trial lawyers advocate for starting with jury instructions and working backward from there. After all, how can you set your course if you don’t know where you’re going? Jury instructions are more than housekeeping; they form the architecture of your case. But the jurisdiction’s uniform or pattern jury instructions aren’t always enough. How those instructions are modified and tailored – and, perhaps more importantly, which additional instructions are included – transforms a raw template into a jury charge that actually assists jurors and guides their deliberations. Giving extra thought and planning to your novel and modified jury instructions will help streamline your case through trial, verdict and appeal.

THE DEFAULT STARTING POINT, THE OUJIS

In Oklahoma state courts, jury charges are predominantly based on the Oklahoma Uniform Jury Instructions (OUJIs). In 1968, as states began embracing pattern instructions, Oklahoma’s Legislature authorized their creation, calling them “necessary to the equal and uniform administration of justice” to reduce reversals arising from instructional error.[1] By the early 1980s, a committee of judges, practitioners and academics produced the first criminal compilation of uniform jury instructions (OUJI-CR (1d)), with the first civil compilation (OUJI-CIV (1d)) to follow soon after. Since then, Oklahoma has added instructions for deprived-child jury trials (OUJI-JUV) and subsequent editions and amendments across the OUJIs.

More than just authorized by the Legislature, their use is required. Under 12 O.S. §577.2, a trial judge must use the OUJI text if it “contains an instruction applicable ... giving due consideration to the facts and the prevailing law.”[2] Having the uniform instructions as a presumptive starting point provides perhaps obvious benefits. With uniform instructions, the parties and court can operate with a level of expectation as to how the law will be explained to the jury – and, in turn, how to orient the evidence to what must be proven at trial.

THE WORLD BEYOND OUJI

But stock OUJIs aren’t everything. Sometimes, the circumstances call for a variance from the template. A non-OUJI instruction is required by statute 1) when the OUJI is silent on a particular issue and 2) when the pertinent OUJI “does not accurately state the law.”[3] 

When the OUJI Is Silent

Although the OUJIs have instructions ranging from oft-used and generally applicable (i.e., direct and circumstantial evidence,[4] credibility of witnesses[5] and how to deliberate[6]) to niche (i.e., transferred intent in an assault and battery case,[7] reenactment evidence[8] and substantial erosion of parent-child relationship[9]), they don’t cover everything. The committees simply can’t contemplate every possible scenario, legal theory and evidentiary ruling. When the OUJI is silent on a particular issue, the parties, in concert with the court, need to devise a novel jury instruction. There are three main sources regularly relied on by courts when faced with instructing a jury outside of uniform instructions: 1) non-OUJI instructions previously given (and potentially blessed by the appellate courts) in Oklahoma district courts, 2) pattern instructions from other jurisdictions and 3) novel instructions drafted from relevant case law.

Instructions given in other cases. There’s not always a need to reinvent the wheel. While matters of first impression do arise – typically because of new statutes or new interpretations of existing statutes – most cases are variations on a theme, and a substantially similar case has been litigated previously. In such cases, the instructions given in those prior cases can be invaluable. Proposing the language from those instructions, or lightly tailored versions of that language, can not only give you a significant head start, but your judge will also have the comfort of knowing they are not out on a limb. This is especially true when that instruction was given by the same judge or a sister court and withstood appellate scrutiny as a correct statement of law.

Depending on the type of instruction requested, it may be beneficial to look outside of Oklahoma as well. Instructions grounded in constitutional principles or in statutes that mirror Oklahoma’s,[10] for example, may likely carry persuasive weight for a judge confronted with no applicable OUJI and a dearth of previous in-state examples. But be careful. When using instructions from other jurisdictions, you will need to reconcile any textual or doctrinal differences to avoid inaccurately phrasing the state of the law in Oklahoma.

Other uniform or pattern jury instructions. In the absence of an OUJI or an instruction previously blessed by Oklahoma courts, look to other vetted uniform or pattern instructions for language that courts can trust. Federal circuit model instructions, neighboring states’ pattern instructions and reputable model instructions by legal publishers, such as Thomson Reuters or LexisNexis, are drafted by committees, road tested in trials and often approved on appeal. That pedigree gives you neutral, plain-English formulations judges are more likely to adopt. Because these patterns are not tailored for Oklahoma law, you gain the most benefit when using the structure, but not necessarily the substance, of the instruction. But other jurisdictions’ pattern instructions can be a great source of inspiration as to what might be missing within the OUJIs. If another jurisdiction felt they merited inclusion in their pattern, you have a strong argument that your jury would likely benefit from similar, clear guidance on the subject here.

Crafting a novel instruction from authorities. There are other instances, however, when you must reinvent the wheel. Either because you’re dealing with a matter of first impression or because there has been a development affecting existing concepts, you may get the sense very early on that the OUJIs and other pattern instructions don’t adequately capture your situation. In such instances, it’s incumbent upon you to take the relevant authority – whether statute, procedural rule or case law – and propose to the judge how to best explain what the law is. As opposed to the other two sources of non-OUJI instructions above, drafting a novel instruction from scratch can be the most intimidating and the most likely to draw scrutiny from the opposing party and the judge. But the inclusion of novel instructions can provide key guidance to jurors on how the law treats nuanced circumstances outside the more regular fact patterns generally accounted for in the uniform instructions.

When the OUJI Is Wrong

Even when there’s an OUJI on point, it won’t always accurately reflect the current state of the law. This can happen for a variety of reasons: a statute changed, a new decision reinterpreted an element or explanation of the law, the general construction doesn’t account for atypical underlying facts. Whatever the reason, the judge is obligated to deviate from a uniform instruction when it “fails to accurately state the applicable law, is erroneous, or is improper.”[11] When that occurs, you are left with submitting either a modified or tailored version of the OUJI to fix the inaccuracy or a novel instruction from scratch. 

THE ART OF CRAFTING AND ADVOCATING FOR NOVEL OR MODIFIED JURY INSTRUCTIONS

Whatever the trigger, novel or modified jury instructions demand extra care and attention. The OUJIs are a very comfortable and safe space for courts. Departing from or adding to those instructions comes with some friction. Your goal should be to make the process as frictionless as possible for your judge. To that end, the following practices will help set you up for success when you find yourself outside the OUJIs.

Begin With the End in Mind

Jury instructions shouldn’t be a last-minute “pretrial matter”; they’re the roadmap for the whole case. Considering their importance in framing the issues on what must be proven, you should draft a working set of instructions as soon as you get the case. Writing them forces you to confront the elements, definitions, defenses, burdens and any unanimity or verdict-form issues while there’s still time to shape your discovery and motions practices and set your case strategy and theories. Also, by drafting them early, you will have more time to adequately prepare novel instructions and how you’ll advocate for them. Waiting until the last minute, especially considering all the other issues that arise in the immediate pretrial stage, is a recipe for settling on instructions that “will have to do,” shortchanging you and your client’s position.

Issue Spot Instructions for Your Circumstances

Even in cases that might seem run-of-the-mill, keep an eye out for ways in which the instructions don’t mesh with your facts and what you know the law to be. After compiling the applicable OUJIs and poring over their provisions, you might come across something that just appears “wrong,” either because it seems to require you to prove more than you thought you had to, limit how properly considered evidence can be used or only give a partial and, therefore, potentially misleading picture of the law. These are the situations begging for a novel or modified instruction. Spotting these circumstances requires careful attention to detail and the ability to put yourself in your future jurors’ shoes, ridding yourself of your curse of knowledge, to consider the language with a fresh perspective. As you review and plan your jury instructions, watch for these types of considerations:

• Element selection: Are only the pleaded and live theories included? Do the mens rea elements correspond to the claims? Do the definitions track the pertinent statutes? Do the instructions properly capture conjunctive versus disjunctive distinctions?
• Proper use of evidence: What limiting instructions are needed? Should such an instruction be given both contemporaneously when the evidence is elicited and during final instructions? Should the jury be admonished that it may draw no adverse inference due to the invocation of a right to silence or the invocation of privilege?
• Trial management and juror conduct: Based on the case and the local practice, is this a case in which juror notetaking is permitted or not? With pretrial publicity, is there a need for special admonishment to steer clear of certain outlets or platforms? What about addressing new and emerging ways jurors might be exposed to case information? How often should such an instruction be given? Do the facts warrant a specific antibias or implicit-bias instruction?
• Courtroom accommodations: Are there potential inferences the court should admonish the jury not to draw, like with the use of an interpreter or remote testimony? Or with support animals or medical conditions within the courtroom?
• Special verdict or interrogatory: Is there a statute of limitations issue depending on a factual determination of when the cause of action accrued? Are there alternative acts or theories that could result in a unanimity problem? Are there comparative or nonparty fault issues requiring apportionment? Does any statutory predicate – such as with punitive damages, statutory multipliers, treble damages or fee-shifting triggers – match the burden and facts that must be found to trigger the remedy?

Draft the Instruction

Actually write the proposed instruction in full – don’t just outline it. This exercise forces you to reckon with the authorities you will rely on, the competing cases that cut the other way and any gaps or ambiguities you must resolve. It also helps you to distill the rule to its most succinct form, considering novel instructions are required to be “simple, brief, impartial, and free from argument.”[12] In this regard, take a cue from other OUJIs. Mirror the tone, structure and economy of language found in the uniform instructions blessed by courts and the committee of experienced jurists. A polished, OUJI-style submission signals credibility and increases the odds the court adopts (or closely tracks) your version.

Test Your Language

As with any work, the first draft is likely far from the ideal finished product. The purpose of these instructions is to take the pertinent laws and, in few words, make them understandable for the broad range of backgrounds and experiences within the jury pool. Easier said than done. As you develop a sense of which novel instructions the deliberations are likely to hinge on, spend additional time scrutinizing them. Take advantage of your network of colleagues, family and friends. Use them as your focus group. Give them the operative language of the novel instruction, and ask them to explain it in their own words. Can they share some examples of evidence or circumstances the instruction would seem to control? What parts of the proposed language didn’t they understand? What were they surprised by in the language? Does it appear that the language is in conflict with any other sense they had about how the law was supposed to work in such cases? Beyond helping you tighten up your proposed final draft instructions, this feedback will also serve to get you out of your own echo chamber, giving you valuable insights into how an average juror might view the applicable law.

Consult Your Most Critical Instructions Throughout the Development of Your Case

Once you’re armed with succinct draft instructions on what you understand the law to be, keep that information handy while working up the case. Because you focused on the jury instructions at the outset of the case, you have the opportunity to tailor your evidence to the subtleties of what must be proven or how the jury is to receive the evidence. Highlight key phrases and excerpts from the draft instructions, and use the discovery process and motions practice to further support those instructions.

For example, before the 2022 amendments to OUJI-CIV, there was not a uniform instruction for a civil fraud case specifically addressing the distinction between statements about future events that may or may not later come to fruition versus making future promises with the then-present intent not to perform for the purpose of defrauding.[13] For defense lawyers facing that issue before 2022, after reviewing the relevant Oklahoma case law (which includes authorities from 1935 and 1940 according to the comments associated with Instruction 18.8 ultimately added in 2022),[14] it would have been in their best interests to identify the issue early on and draft a proposed jury instruction similar to what the committee ultimately came up with (with the pertinent language emphasized):

To constitute actionable fraud, false representations must generally relate to present or pre-existing fact, and cannot ordinarily be predicated on representations or statements which involve matters that [(may)/(may not)] occur in the future. However, if a promise about the future is made with an intention not to perform it, and is made for the purpose of deceiving the person to whom it was made, and inducing [him/her] to act, the promise constitutes fraud.[15]

Working toward that endpoint, pre-2022 defense counsel could have submitted requests for admission that the only representations in the case involved matters predicted to occur in the future, such representations involved matters outside the defendant’s control and a later intervening cause contributed to or caused the future event not to occur. No matter how the plaintiff would respond to such requests for admission, the rest of the defense’s written and oral discovery could have also been geared toward establishing the divide between whether the representation involved a promise within the defendant’s control versus a mere forecast or best intention. By engaging early with the jury instruction drafting process as laid out above, the litigation team might have an additional viable theory based on a technical distinction that might have otherwise been missed or discounted. And by focusing on it through the discovery and motions phase, defense counsel would be better positioned to advocate to the court why a novel jury instruction on that technical distinction would be required under these circumstances – because the law (albeit with older authorities) supports it, the underlying facts warrants it, and the existing instructions leave too great a possibility for jury confusion.

For Essential Instructions, Consider Moving for Them Well Before the Pretrial Matters Submission Deadline

So vital are selected instructions to your case that you need more certainty on them before the eve of trial. Maybe you need to know whether to expend resources to pursue certain evidence or whether a particular defense or theory-related instruction given will inform whether your client reaches a pretrial resolution. Whatever the reason, certain instructions merit litigation before the usual submission process so that all involved can give them their due attention while they still have the time and bandwidth. Early motions practice pulls the instruction “out of the pile” in a way that underscores the importance to the judge and avoids any eleventh-hour reluctance to approve nonstandard language. Requested with a motion and its accompanying brief, you will have a greater opportunity to provide context for the reasons why a particular instruction is needed and expound on your rationale for why your proposed construction accurately and fairly states the law. Not only is such an approach more persuasive to the court, but it also establishes a record of the well-reasoned request for any appellate authority that might review the denial of a requested instruction down the road.

Even for Those Submitted at the Pretrial Matters Deadline, Provide Some Level of Justification for Your Proposals

At a minimum, you will have the pretrial matters submission date to provide your proposed jury instructions. Be sure to submit your requested jury instructions, especially those novel ones, consistent with the scheduling order and local district court rules, lest you run the risk of being deemed to have waived your ability to request them. In addition to being fully reproduced with citations to the authorities you rely on, you should also consider submitting, either by footnote or on the cover page of the submission, some briefing with your proposed instructions on why the uniform instruction is inadequate, what controlling law requires and the concrete harm if the jury is not properly instructed.

Overprepare for the Charge Conference

It is the judge’s responsibility to explain the law to the jury. Because it’s imperative to the entire justice process that the judge gets it right (and because an appellate court will be reviewing such instructions de novo),[16] the court and court staff will be highly invested in what happens at the charge conference. Aim to be the most prepared in the room. Know every point of conflict, and be ready to succinctly explain why your language better states the law, fits the facts and avoids reversible error. Have clean copies and a redline against any uniform or pattern text so that the court can see exactly what you changed and why. For the handful of instructions that will decide the case, consider bringing a one-page mini-brief or authority sheet with pin cites and the controlling quotations. And be reasonable. The charge conference is a collaborative process between you, opposing counsel and the court. It’s unlikely that every call is going to go your way. Concede edits (or offer a narrowly tailored fallback version) for language that doesn’t matter to your theory, and reserve your capital for the instructions that do. In the end, being helpful to the court and maintaining your credibility will make it easier for the judge to adopt your language in a close call.

Make Your Record

Rarely are your proposed instructions directly adopted without any changes. When you have asked for an instruction that accurately states the law and the judge rules against you, you must ensure you make a good record. As referenced above, jury-instruction error is a frequent ground for reversal but only if you preserve the issue. Many judges like to work through objections to jury instructions, at least initially, on an informal basis through off-the-record conferences. Take meticulous notes, and at the very next on-the-record opportunity, memorialize the substance: identify each disputed instruction, tender your competing text (with any redline to pattern language), and state distinctly the grounds for your position and the specific prejudice to your client if the court’s version is given. While it will likely feel annoyingly repetitive to revoice your same concerns, sometimes discussed just minutes prior, if it is not stated on the record, it’s as if it didn’t happen – at least for the appellate courts. And to guarantee no one can argue that you acceded or acquiesced to the instruction ultimately given, object early and often. If the court requires the submission of a combined set of jury instructions, clearly object to the opposing party’s competing construction. Continue lodging your objection during the charge conference and when the court circulates the final drafts. Object again after the instructions are read. Foreclose any claim of forfeiture by preserving your objection on the record. Remember, whether an instruction accurately states the law will be reviewed de novo. Increase your chances of winning at the second bite of the apple on appeal by fully articulating your reasons for a novel instruction on the record.[17]

CONCLUSION

By the time trial draws near, there is a lot on the trial lawyer’s plate. At that stage, countless hours will be spent perfecting an opening statement, devising a bulletproof impeachment and imagining impactful visuals that will resonate with the jury during closing. It’s easy for jury instructions to be overlooked. But those instructions – how the law is framed for the jury – arguably have the potential to move the needle more than any of those other trial presentations. Preparing them early, getting them right and using them to inform the rest of your case strategy and theory maximizes your chances of success at trial and beyond.

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ABOUT THE AUTHORS

Andrew J. Hofland is a shareholder at GableGotwals, where his practice focuses on white-collar defense and commercial litigation. He previously served as an assistant U.S. attorney for the Northern District of Oklahoma and a Navy judge advocate.

 

 

 

 

 

 

Justin A. Lollman is a shareholder at GableGotwals, where his practice focuses on appeals, complex commercial litigation and white-collar criminal defense. Before entering private practice, Mr. Lollman clerked on the U.S. Court of Appeals for the 7th Circuit and the U.S. District Court for the Northern District of Oklahoma.

 

 

 

 

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ENDNOTES

[1] 12 O.S. §577.1.

[2] 12 O.S. §577.2; see also Marquez-Burrola v. State, 2007 OK CR 14, ¶26, 157 P.3d 749, 758 (“trial courts should use the Uniform Instructions whenever possible.”).

[3] 12 O.S. §577.2.

[4] Instruction 3.25 (OUJI-CIV (3d)); Instruction 9-4 (OUJI-CR (2d)).

[5] Instruction 3.13 (OUJI-CIV (3d)); Instruction 10-8 (OUJI-CR (2d)).

[6] Instruction 1.9 (OUJI-CIV (3d)); Instruction 10-10 (OUJI-CR (2d)); Instruction 1.9 (OUJI-JUV).

[7] Instruction 19.9 (OUJI-CIV (3d)).

[8] Instruction 9-46 (OUJI-CR (2d)).

[9] Instruction 3.24 (OUJI-JUV).

[10] See, e.g., Krimbill v. Talarico, 2018 CIV APP 37, ¶5, 417 P.3d 1240, 1244-45 (expressly embracing Texas case law as persuasive since Oklahoma’s Anti-SLAPP Act mirrors Texas’); Beard v. Love, 2007 OK CIV APP 118, ¶20-21, 173 P.3d 796, 802 (Delaware decisions “very persuasive” considering Oklahoma’s Corporation Act is based on Delaware’s).

[11] In re T.T.S., 2015 OK 36, ¶18, 373 P.3d 1022, 1029.

[12] 12 O.S. §577.2.

[13] In re Amendments to OUJI-CIV, 2022 OK 75 (Sept. 20, 2022).

[14] Id.

[15] Instruction 18.8 (OUJI-CIV (3d)).

[16] See Johnson v. Ford Motor Co., 2002 OK 24, ¶9, 45 P.3d 86, 90 (stating that the jury “instructions need not be ideal, but they must reflect the Oklahoma law regarding the subject at issue.”).

[17] More on reminders on how to best preserve issues for appeal in “The Basics of Preserving Error for Appeal: A Trial Lawyer’s Guide for Making a Better Appellate Record” by Justin A. Lollman and Andrew J. Hofland, 96-Jan OBJ 28 (2025).