Recently I was interviewing for legal work and I was asked about my passion (okay, my obsession) with jury instructions.  Specifically, about my position that (1) jury instructions must be both drafted and submitted AND RULED UPON before trial starts, because (2) how in heck do you know what elements you are required to prove (or disprove) without jury instructions in place?

Many counsel and judges in New Mexico will address jury instructions on an ad hoc basis as time permits during trial, with a final hearing on jury instructions right before or about the time of closing arguments.  I maintain that this is TOO LATE in the process. Of course a set of instructions may need to be tweaked or revisited after unexpected testimony or rulings during trial. But again, I feel we need to know WHAT THE ELEMENTS we are required to prove (or disprove) are before anyone calls the first witness.  In fact, it is best to know before we void dire our first prospective jurors.  And certainly it would seem like a good idea to know the elements when you talk to the jury about what you expect the evidence will prove in opening statements.

I also believe this is necessary for bench trials.  Sure, there is no jury to instruct.  But the jury instructions that your judge will apply as fact-finder still should be drafted, litigated and ruled upon before you start trial.  Again, if you do not know for sure what standard you and your case are going to be measured against, how can you expect to meet it?

Second, even though New Mexico has a Uniform Jury Instructions, within the instructions, themselves, there is vast room for able and creative advocacy. For example, if you are a plaintiff, Uniform Jury Instruction 13-302A invites you to draft a jury instruction setting out your theory and theme of the case:

13-302A. Statement of theory(ies) for recovery.
Combined with UJI 13-302B through 13-302E NMRA, this instruction will be used in most cases to introduce by name the theory or theories of recovery relied upon by plaintiff. The format recommended in UJI 13-302A through 13-302E NMRA should result in an instruction that (A) identifies each theory of recovery, and (B) states factual contentions, causation and burden of proof for each theory followed by (C) a statement of denials and affirmative defenses applicable to that theory and (D) a statement of the factual contentions, causation and burden of proof for each affirmative defense.
Any counterclaim should be stated in Part D, which also includes a statement of plaintiff(s)' denial of affirmative defenses or in reply to counterclaims.
Part E is a statement of other contentions and denials, causation and burden of proof, which do not constitute essential elements of a claim or defense, but which do constitute special issues, e.g., vicarious liability for the proportionate responsibility of a co-defendant, punitive damages, etc., which will be submitted to the jury in the special verdict form.
[As amended, effective March 1, 2005.]
Committee Commentary. — UJI 13-302A through 13-302E NMRA combine to make the most important single instruction in the lawsuit, the post to which all remaining instructions are tied, and the court and counsel should give particular attention to its finalization. This instruction ultimately will be completed when all of the evidence is in and the court has determined which issues are raised and whether there is evidence justifying their submission to the jury.