THE OKLAHOMA BAR JOURNAL 30 | NOVEMBER 2025 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. 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
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