NOVEMBER 2025 | 29 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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
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