CACIs Compel Litigators to "Do It In Reverse"
By Travis Burch
In The 7 Habits of Highly Effective People, author Stephen Covey lists the ability to "start with the end in mind" as a valuable habit for success. In other words, he suggests that in any endeavor one should first see the goal, and then work backwards to determine what steps are required to achieve it. This habit is axiomatic for every successful trial lawyer, and particularly when choosing effective jury instructions. Many judges in California courts are reluctant to deviate, even slightly, from the Judicial Council of California Civil Jury Instructions (CACI) and the corresponding proposed verdict forms. Therefore, to increase the chance of a victorious outcome, astute litigators on both sides of a lawsuit should thoroughly review all relevant CACI instructions and the corresponding verdict forms at the very outset of the litigation.
If you have tried civil cases, you may have faced situations in which the language in the charging CACI instructions differs from the substantive case law defining the elements of your client’s cause of action. Regardless of how nuanced such differences might be, they can have real consequences for a verdict. This article presents three types of traps for the unwary, in which the CACIs and their attendant sample special verdict forms could cause confusion for a lawyer or a jury. These are based on personal observations, and the author’s 15 years of litigation experience. These examples are not intended to be an exhaustive list of the linguistic wrinkles and potential pitfalls lurking in the CACI instructions and verdict forms. Instead, the intent is to warn of hazards, and to invite the reader to both "keep the end in mind" and further develop this particular layer of litigation strategy and trial preparation. This will help ensure that instructions will be consistent with the corresponding verdict forms, the law, and the clients’ interests.