NOVEMBER 2025 | 31 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. 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 onepage 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 offthe-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
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