United States: Anatomy of a Jury Instruction in Construction Litigation: Distilling the Complex into Plain Language for Compelling and Effective Charges - Part 1

For those construction cases suited to presentation before a jury, along with the benefits associated with having the matter decided before a jury of laypersons, a significant distinguishing feature must be considered at the outset. One of the defining aspects of a jury trial which must be given adequate thought and planning is the jury instruction that will be provided by the judge to the empanelled jury members before their final deliberations in the case.

Introducing the Message

In most circumstances, that charge contains the last words that the jury will hear in the courtroom before they retire to their deliberations. After all the opening statements, testimony, expert presentations, graphics, videos, schedules, compilations and, of course, the closing arguments themselves, it is the judge who gets the last word in the courtroom before the jury has its last words with the verdict. It is with this singular charge that the trial court accomplishes a great many of its obligations. The charge provides the jury with an understanding of its role; it provides the basic principles for the jury to consider in deliberations; it identifies the pertinent burdens of proof held by the various parties; and then, last but certainly not least, it also summarizes the law which will guide the jury in its determinations as the ultimate fact finder.

To leave such an important facet such as the jury instruction to chance or to the entire discretion and effort of the court would be a tremendous misstep. A properly crafted jury instruction with a balanced presentation of the law and those factual issues which the jury is being called upon to decide can provide much assistance to the court in preparing this necessary element of the case. Also, it is another means by which subtle advocacy of your party's position can be advanced, particularly where the law may be susceptible to differing interpretations, and the court's agreement with your interpretation (via acceptance of your proposed charge) can greatly enhance and advance the possibility that a favorable outcome will be rendered by the jury when it returns to deliver its verdict.

In the well-respected legal film, Anatomy of a Murder, Otto Preminger directed a concise interpretation of the original novel by Robert Traver and presented the complexity of that novel in a format and on terms where the actors—including Jimmy Stewart, George C. Scott and Lee Remick—could deliver, in a more condensed fashion, the message intended in and from that book. In some respects, the innovative opening credits by Saul Bass foreshadow the efforts and genius of Preminger as a filmmaker and storyteller. Accompanied by the Duke Ellington music overlay, the various puzzle pieces comprising the human body are assembled on-screen, ultimately showing the outline of the murder victim, the focal point for the movie. Almost immediately, the audience joins the parties on this journey of assessing the killer of the man who was the victim and central figure of the jury trial captured on film.

Much the same as the challenge presented to Preminger, construction practitioners are faced with taking the factual and legal complexities of their cases and distilling them in a fashion where they can be delivered with a minimum of legalese and, at the same time, still capturing all of the necessary accuracy to withstand appellate analysis and further judicial scrutiny on the adequacy of the charges presented to the fact finder. So much of early legal learning requires the untrained mind to comprehend and interpret the complex principles presented by the law. Having embraced and come to understand those complex legal theories, the challenge then becomes how to distill that knowledge and convey it to the jury such that the required components of legal theory are contained therein, but at the same time, the message is delivered with due consideration that the members of the jury are not trained lawyers. Furthermore, the charge should be presented in a way which does not work at cross purposes with the objective of obtaining a decision by the jury in favor of the client for whom the lawyer is providing representation. Making matters even more complicated is the fact that jury trials, along with most other legal proceedings, are taking on highly technological-hued presentation techniques that have not yet found themselves to the delivery of the final charge to the jury itself.

A recently published article appearing in 3 Litigation Commentary and Rev. 34 (June/July 2010), contains author Harry Plotkin's evaluation of the changes in case presentation necessitated by the differing generations now present in the given jury pool. In the article entitled "Generations X, Y and the New Speed of Trial," Mr. Plotkin notes there was a time when the lawyers presented their cases without the benefits of PowerPoint, TrialDirector, animations or even blowups or other demonstrative evidence. Further, Mr. Plotkin notes and acknowledges that we cannot convert today's trial completely into a multimedia juggernaut. He then importantly observes that the people making up the jury pool include those coming from generations where news cycles are 24/7 and access to information over the Internet is almost as instantaneous as the click of a mouse button. With the makeup of juries now including members of Generations X and Y and, to a growing degree in the very near future, Generation Z (those presently around 15 years of age), the author's conclusion is that trials can no longer be entirely focused on the spoken word and that jurors must see not just hear the case.

Although not mentioned in the article, consider another challenge of the effective jury charge in today's modern courtroom. The jury instruction process remains an entirely verbal one, not enhanced by demonstrative exhibits, animation, TrialDirector presentation or even copies of the exhibits introduced during the course of evidentiary presentation in the case. Therefore, that written (and ultimately spoken) word must be at its best and most precise to permit it to effectively communicate to the jury the key legal principles necessary to be understood by the jury in its process of analyzing the facts and evidence that were delivered at the trial.

Having defined the necessity of precisely crafting and presenting effective jury instructions to the court for its consideration and, hopefully, future delivery to the jury, there is then the task of actually preparing those instructions. Prior to 2001, there was little, if any, directly relevant materials on the unique issues to be addressed in construction-related cases. Fortunately, that landscape changed with the publication of the American Bar Association's Model Jury Instructions: Construction Litigation, released in 2001 by the ABA Section of Litigation and its Construction Litigation Committee. However, even with that valuable resource, which covers potential charges on a variety of uniquely construction-related principles, it remains a challenge to provide trial courts charges with which they are familiar so that the charges may be more readily embraced and, at the same time, are consistent with the legal issues presented in that particular construction litigation. Fortunately, that landscape appears to be changing (albeit slowly), at least in a select number of jurisdictions.

As reported in the July 2005 issue of ABA Litigation News, Volume 30, No. 5, California completely rewrote its civil and jury instructions in July 2003. As observed in the article, "California Simplifies Jury Instructions: Will Juror Understanding Improve?" the emphasis and focus of these efforts was to simplify the jury instructions for organization, style and grammar. However, even as cautioned in the article itself,

Another challenge is presented by the steady statistical decline in jury trials. As reported in the November 2005 issue of ABA Litigation News, Volume 31, No. 1, it is becoming increasingly challenging to find opportunities to present matters before a jury. In the article entitled, "Where Have All The Trials Gone? How to Get Trial Experience in a Tightening Court System," it was reported that "[d]espite a fivefold increase in civil filings between 1976 and 2002, state courts in the 22 states that collect this type of data tried 30 percent of civil cases in 1976, as opposed with only 7.5 percent in 2002." Still, there appears to be a desire to place certain construction cases before juries. As such, there must be an ongoing effort to evaluate, consider and craft those instructions which will be presented to these ultimate fact finders.

Just recently, California adopted another new series of jury instructions, including charges specifically relating to construction litigation case principles. These instructions are contained in the Civil Jury Instructions (CACI) Revisions, which are to become effective on December 14, 2010, along with other updates to certain existing instructions in California. Also, construction-specific form instructions are now available in Utah (Model Utah Jury Instructions, 2d Ed.) and also in Florida (2-42 Florida Forms of Jury Instructions, 42.syn). Nevertheless, for most states, these resources remain unavailable. Considering the relative paucity of resources presently available to many construction litigators and in light of the foregoing challenges that are presented to counsel and the parties, along with the court, it would be appropriate to evaluate the standard of review applied to these charges when they are being considered on appeal, as well as how the court treats jury instruction charges generally and in those instances where the underlying legal principles may be in a state of flux. What may also be in a state of flux are the members of the jury and the necessity of appreciating that juror beliefs may change depending on the nature of the case and the makeup of your jury pool. Even for "standard charges" previously used in construction cases, they should be revisited and refined if at all possible to deliver the message of your present case and the legal principles that support it in such a way that the empanelled jurors will embrace the charge as well as (hopefully) your view of the evidence as presented.

The Standard of Review for Jury Instructions

Appreciating the basic standard of review to be applied in evaluating a jury charge is an excellent starting point for embarking on any jury instruction analysis. In Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996), the court was faced with a number of jury instructions being reviewed on appeal. Included among those jury instructions was a statute of limitations issue, which can be among the issues frequently encountered in a given construction case. The court observed as follows:

Hilao, 103 F.3d at 779.

In another matter, Sundt Corp. v. State of South Dakota Department of Transportation, 566 N.W. 2d 476 (S.D. 1997), the court was requested to evaluate a number of jury instructions on appeal in connection with a paving contractor's suit involving the Department of Transportation of South Dakota. At issue were claims for damages and extra costs incurred by the contractor. The court began its analysis with a discussion of what was necessary to preserve an objection to the jury instruction at trial. The court noted that an "objection [that is] clear so the trial court is advised of what possible errors exist and be granted the opportunity to correct any instructions," was required in order to preserve the matter for appellate review. Thereafter, the court went on to review the standard for assessing the adequacy of the jury instructions as follows:

Sundt, 566 N.W. 2d at 480–82 (citations omitted).

Even more recently, in the case of Ted Jacob Engineering Group, Inc. v. The Ratcliff Architects, 187 Cal. App. 4th 945, 2010 Cal. App. LEXIS 1463 (certified for partial publication) (Cal. Ct. App. 1st Dist. August 23, 2010), the court was asked to evaluate certain jury instructions that were presented in a matter where the subcontractor had sued a contractor for damages associated with performance of additional work on a hospital renovation and expansion project. As a part of its decision, the court gave a comprehensive overview of the scope and standard of review to be applied in evaluating a jury instruction challenge on appeal:

Ted Jacob Engineering, 187 Cal. App. 4th at 961–62.

Also very recently issued was the decision in Willis v. Indiana Harbor Steamship Co., L.L.C., 2010 Minn. App. LEXIS 153 (Ct. App. Minn. October 19, 2010). In that case, involving a negligence action on a shipping vessel, the court was faced with an appeal on a number of jury instructions, including, notably, an instruction on spoliation, a topic discussed more fully infra. In specifics, the appellants argued that the negative-inference jury instruction based on established spoliation was unwarranted under Minnesota law and "unfairly prejudiced appellants on both liability and apportionment of that liability, and therefore that the district court abused its discretion in failing to grant appellants a new trial."

The court began with the discussion of Minnesota law on the issue of spoliation, noting that the courts in that state "have held that spoliation does not have to be intentional to constitute obstruction of justice deserving of a sanction." Willis, 2010 Minn. App. LEXIS 153, citing Wajda v. Kingsbury, 652 N.W. 2d 856, 862 (Minn. App. 2002). The court continued "[r]egardless of intent, disposal of evidence may be subject to a spoliation sanction when a party knows or should know that the evidence should be preserved for pending or future litigation." Willis, 2010 Minn. App. LEXIS 153, citing Patton v. Newmar Corp., 538 N.W. 2d 116, 118 (Minn. 1995). As such, the court concluded that the spoliation sanction in Minnesota would permit an unfavorable inference to be drawn from the failure to produce evidence, provided that it was in the possession and under the control of a party to the litigation. Before the court undertook an evaluation of the instruction itself, however, it also noted on what grounds the jury verdict could be overturned. The court observed as follows:

Willis, 2010 Minn. App. LEXIS 153 at *11–12.

The court then proceeded with its analysis, noting that Willis argued this instruction was "harmless because the instruction allows the jury to determine if evidence was allowed to be altered and who allowed it to be altered." However, the court concluded that because the district court's decision to grant a sanction in the form of a negative-inference instruction placed the weight of the court's authority behind the negative-inference, and because the appellate court could not conclude that the negative-inference instruction did not prejudice the appellant's substantial right to a fair trial, and as well as because the instruction noted above was not authorized, the court reversed the apportionment of liability and remanded for a new trial on liability and apportionment of the causal fault. Willis, 2010 Minn. App. LEXIS 153 at *12–13.

Raise It or Waive It / Objecting to the Jury Instruction

The importance of timely interposing an objection to a jury instruction should also be considered. This point was emphasized in Serio-US Industries, Inc. v. Plastic Recovery Technologies Corp., 05-1106, -1143, -1306 (Fed. Cir. Aug. 10, 2006). In Serio, the court was called upon to review jury instructions on appeal in an infringement action. The court observed that absent a proper and timely objection, including one before the jury retires, that the challenging party could not prevail in an appeal absent some plain error affecting substantial rights and resulting in a miscarriage of justice. As such, without finding a miscarriage of justice in the instructions as a whole, the court refused to overturn the decision of the jury on appeal.

Serio is not alone in this cautionary admonition. See, e.g., Bacon & Associates v. Rolly Tasker Sails (Thailand Co.) Ltd., 841 A.2d 53-63-64 (Ct. Sp. App. Md. 2004), quoting Fearnow v. Chesapeake and Potomac Tel. Co., 676 A.2d 65, 72 (Md. 1996) ("In Maryland, in order properly to preserve an objection to a court's instruction to the jury, a party ordinarily must make a specific objection after the instructions are given. . . . [Otherwise] 'the trial court has no opportunity to correct or amplify the instructions for the benefit of the jury if the judge is not informed of the exact nature and grounds of the objection.'").

Keeping the standards of review in mind can be vital and helpful when crafting or modifying a jury instruction for presentation to the court. These standards should also be considered in evaluating when to object to the opposing party's or even the court's own proposed instructions. Stating that objection, as well as the grounds for it in terms consistent with the cases interpreting these jury instructions, may be a key turning point on the ultimate success of challenging these instructions should that be necessary in the appeal phase. Otherwise, the appeals court may be hard-pressed to reverse the jury's determination. This observation also emphasizes the significance of getting your charges before the jury in the first instance.

Resource for Recourse

As noted above, there was a time when the availability of resources on construction-litigation jury instructions was slim to nonexistent. Aside from general principles of contract and tort law contained in many states' individual standard-form jury instructions, there was no publication or treatise specifically tailored toward the presentation of unique construction issues or terminology. As noted above, all that changed with the publication of the Model Jury Instructions: Construction Litigation published by the ABA Section of Litigation. Included within that volume are numerous instructions going to the heart of many complex construction principles. Not only are the proposed instructions for these issues set forth, detailed comment is provided for each charge, along with citation authority that supports the jury instruction presented. Needless to say, the publication does not address each charge on a 50-state basis. However, given the presence of the proposed charge, along with the underlying case authority, it allows the consulting practitioner to consider the charge, review the citing authority, translate that authority into the state's law being presented in the case at issue and review that state's law for consistency with the proposed charge.

This particular charge does not appear to be not one that could be found in the standard-form instructions generically available for most commercial litigation jury trials.

Another charge of a similar nature is found dealing with where a contract prohibits changes without written authority. The model charge in that regard is set forth as follows:

Two final examples of the types of construction-specific charges contained in the Model Jury Instructions: Construction Litigation are those dealing with extra testimony to prove standard of care, and common knowledge and standard of care. While the use of experts and standard of care charges are not exclusive to the construction industry, the unique aspect of an architect's obligation is recognized and set forth in the following:

However, even though there was a tremendous impact from the publication of these jury instructions, since its publication in 2001, there has not been any substantial update of the publication.

In 2006, some of the individuals who were instrumentally involved to differing degrees in the initial publication of the book collaborated again for a program on jury instructions in construction litigation. Included within these materials was an acknowledgement of the Section of Litigation's Model Jury Instructions book, along with an exploration of additional legal developments and a presentation of selected charges on these emerging points. Two of these additional topics addressed during this update were issues of spoliation, discussed earlier in the context of the Willis case, and which are becoming more of a concern in today's electronic data and construction environments, as well as a charge on the issue of negligent misrepresentation, more recently recognized in a number of states as a basis for pursuing a design professional for liability absent contractual privity. The discussion on these two charges follows:

(A) The Spoils of Spoliation¹

One significant issue which has more recently come into greater focus involves issues of evidence spoliation. While many of these cases have arisen in the context of document issues and, even more recently, issues of electronic data, a more "concrete" component of spoliation law is developing as relates to construction projects. As discussed in detail in an article entitled "Don't Spoliate an Already Bad Ending: Exploring the Ethical Intersection of Spoliation and Remedy of Warranty and Other Deficiency Claims," appearing in the Spring 2004 issue of Construct! Vol. 13, No. 3, the legal landscape has become fertile ground for discussions and findings of spoliation when construction components have been eliminated or destroyed in the process of remedying the alleged deficiency. As such, an instruction on spoliation may be necessary in your next construction case involving defects and/or breaches of warranty.

The recourse typically presented in jury instructions on the spoliation issue pertains to an adverse inference which can be drawn if spoliation is found. For example, in Pia v. Perrotti,² the court was called upon to review the following charge on spoliation. This discussion followed a determination by the court that something short of evidence preclusion was warranted in light of the facts and circumstances surrounding the alleged spoliation, being the owner's failure to preserve electrical equipment allegedly implicated in a warehouse fire:

Because this charge met the tripartite spoliation test announced in Schmid v. Milwaukee Electric Tool Corp.,⁴ and was adopted by the Supreme Court of Pennsylvania in Schroeder v. Commonwealth, Dept. of Transp., Navistar International Transportation Corp.,⁵ the court found the charge to be proper.

Another example of an adverse inference charge relating to a possible construction/warranty spoliation matter is presented below:

Overall, crafting an instruction following these general principles should permit presentation of the spoliation issue to a jury in the form of an adverse inference instruction from the court. Obtaining such an instruction would likely be a powerful tool in an instance where a critical component in dispute was disposed of before adequate opportunity was afforded to inspect the component in question.

(B) Building a New Charge – Addressing the Latest Legal Developments

Sometimes the challenges presented in crafting a jury instruction arise when there is a new and unique development in the law in a given jurisdiction. Confronted with such a change in the legal landscape, the trial lawyer is then left to assess that legal development and to prepare from that decision a jury charge which is not only compliant with the new legal concept, but also appropriately embraces the factual questions which should be presented to the jury (as opposed to issues of law to be decided by the court).

Consider the scenario in which construction practitioners now find themselves in Pennsylvania following the decision of the Supreme Court of Pennsylvania in Bilt-Rite Contractors, Inc. v. The Architectural Studio.⁷ There, in a case of first impression, the Supreme Court of Pennsylvania held that a building contractor could maintain an action sounding in negligent misrepresentation against an architect for alleged misrepresentations contained in the architect's plans and specifications for a public construction contract, even in the absence of privity between the architect and the contractor. In reaching that determination, the court undertook an extensive review of the law in Pennsylvania as relates to other non-construction scenarios involving negligent misrepresentation claims, the Restatement (Second) of Torts § 552, and a number of decisions from other jurisdictions which have previously recognized the ability of pursuing a negligent misrepresentation claim against the design professional, even in the absence of privity (when the reliance upon that professional's designs was to be expected under the facts and circumstances presented).

Faced with the decision of the Supreme Court of Pennsylvania in Bilt-Rite, the practitioner could look to the decisions of the cases cited from other jurisdictions which have similarly adopted the negligent misrepresentation exception to the Economic Loss Rule (as is set forth in § 552 of the Restatement (Second) of Torts) for guidance.⁸

Another starting point for crafting the charge could be a review of the Restatement (Second) of Torts § 552, along with the Bilt-Rite decision itself. Section 552 of the Restatement (Second) of Torts provides in pertinent part as follows:

From the foregoing, the following charge could be construed as consistent with the recent instructions of the Supreme Court of Pennsylvania in Bilt-Rite and the requirements for the tort of Negligent Misrepresentation, as set forth in § 552 of the Restatement (Second) of Torts:

As can be seen from the above, the charge captures the essential elements of the tort of negligent misrepresentation, as set forth in the Restatement (Second) of Torts at § 552, and also embraces some of the Supreme Court of Pennsylvania's concerns regarding the cause of action as discussed in the Bilt-Rite case.¹⁰ Again, after crafting such an instruction, it might be worthwhile to consider the decisions of courts in other jurisdictions which have already embraced the claim and analyzed a charge on that claim so that an instruction beyond attack on appeal can be offered to the trial court during the jury charge conference.¹¹

Footnotes

1. This and the next subsection of the materials originally appeared in this author's article entitled, "Jury Instructions in Construction Litigation: Challenges in Crafting Compliant and Convincing Charges in Construction Cases" and was presented the American Bar Association Forum on the Construction Industry meeting on May 18–19, 2006.

2. Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998).

3. Pia, 718 A.2d at 324.

4. Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994).

5. Schroeder v. Commonwealth, Dept. of Transp., Navistar International Transportation Corp., 710 A.2d 23 (Pa. 1998).

6. See Kevin F. O'Malley, et al., 3 Federal Jury Practice and Instructions §§104.26, 104.27 (5th Ed. 2000); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995), citing Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983); Perricone v. Clarke, 1999 WL 124477, *1 (E.D. Pa. March 5, 1999).

7. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005).

8. See, e.g., Donnelly Construction Co. v. Oberg/Hunt/Gilleland, 677 P.2d 1292 (Az. 1984) [Note: Very recently, this decision in Arizona came into question as stated in Flagstaff Affordable Housing, L.P. v. Design Alliance, Inc., 223 P.3d 664, 671-72 (Az. 2010)]; Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 300 S.E. 2d 503 (Ga. 1983); Jim's Excavating Service, Inc. v. HKM Associates, 878 P.2d 248 (Mont. 1994); Davidson and Jones, Inc. v. County of New Hanover, 255 S.E. 2d 580 (N.C. App. 1979); Tommy L. Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc., 463 S.E. 2d 85 (S.C. 1995); and John Martin Co., Inc. v. Morse/Diesel, Inc., 819 S.W. 2d 428 (Tenn. 1991).

9. Restatement (Second) of Torts § 552.

10. See also, Atkinson Warehousing and Distribution, Inc. v. Ecolab, Inc., 115 F.Supp. 2d 544, 547-49 (D. Md. 2000) (court reviewed and upheld jury instructions given on negligent misrepresentation in warehousing dispute).

11. See, e.g., Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317, 342-43 (Az. 1997) (in matter involving, inter alia, negligent misrepresentation claim, the court reviewed jury instruction based on §552 of the Restatement (Second) of Torts and concluded that language used by the trial court on reasonable foreseeability too broadly expanded Price Waterhouse's responsibility and directed on remand – ordered on other grounds – that instruction would have to be modified); Huber, Hunt & Nichols, Inc. v. Moore, 136 Cal. Rptr. 603, 623-26 (Cal. Ct. App. 5th Dist. 1977) (in contractor's case against owner and architect for increased costs, the court reviewed negligent misrepresentation instruction that was alleged to have been improperly refused and concluded that the instruction as proposed was incorrect on several principles and, if actually refused, was properly done so by the trial court).

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

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