As a commercial litigator, the trier of fact in a majority of my cases include judges or an arbitration panel. My preparation for each case, however, begins as if the matter is before a jury. Let me explain.
As a judicial law clerk in the Circuit Court for Baltimore City, I spent a year watching trials by good (and not so good) attorneys, most of which were before a jury. Prior to the start of any jury trial, I was required to ask for the following from counsel: voir dire and jury instructions. On a number of occasions, counsel would indicate that their jury instructions had not been completed and a copy would be provided to the Court prior to the close of the case. My judge’s response would usually be a blend of confusion and disdain. She would say, “Michael, jury instructions should be one of the first things you consider when preparing for a case. It simplifies the elements of the cause of action and shows you the Plaintiff’s burden of proof.” She told me this every time I came back empty handed at the start of a trial.
Being told this on numerous occasions, I simply filed it somewhere in my temporal lobe with gobs of other important and non-essential facts. Even after the completion of my clerkship and the start of my legal career, this tidbit of legal advice remained buried under other bits of information. Only after I started to independently handle litigation matters on my own, which required me to strategize and plan for the upcoming litigation , did the Judge’s word flood back into my consciousness – “Start with the jury instructions.”
The Maryland Pattern Jury Instructions have been changed, tinkered, supplemented, vetted, written, and rewritten by legal scholars over the years. The instructions are written with such precision and clarity, they are used to instruct laypeople on how to apply the law. The jury instructions also provide the perfect starting point for any type of litigation, regardless of whether the trier of fact will be a judge, an arbitrator, or six people selected from a jury pool. Essentially, whether I am drafting a complaint on behalf of a client or responding to one, the launching point involves a review of the necessary burdens of proof as outlined in the MPJI. I start at the end and work from reverse. It is easier to plan a case if you know what needs to be proved or disproved at the onset and all of that information usually lies in the Maryland Pattern Jury Instruction.
So when I have my next jury trial, I will have in my hands a copy of my jury instructions at the start of trial.