Lost in translation

The importance of accurate jury instructions – CACI is not perfect

Holly Boyer
2015 December

Jury instructions are the proverbial roadmap by which twelve individual jurors, who presumably have no experience in the law, must decide liability and damages. In the late 1990’s, California embarked on the commendable task of improving jury instructions so that they could be more understandable to jurors. A Task Force was created and charged with drafting comprehensive, legally accurate jury instructions, guided by “plain English” principles. The Judicial Council of California Civil Jury Instructions (CACI) were approved in 2003 and are now the official instructions for use in the state of California. Use of the Judicial Council instructions is “strongly encouraged.” (Cal. Rules of Court, rule 2.1050.)

CACI, however, is not perfect. Nor could it be. Despite the tireless efforts and good-intentions of the Judicial Council, there is always the possibility of error. While CACI is undoubtedly the starting point for determining the applicable law, even officially adopted form instructions may on occasion be wrong. This might be because of an evolving area of the law, where the general CACI instruction simply does not reflect the recent developments in the law. Or it might be that the facts and legal theories in a particular case simply don’t fit neatly into the standardized instruction. Under such situations, counsel should request modification of the form instruction, or propose an alternative special instruction.

CACI itself recognizes that it is not perfect nor necessarily appropriate in every case; “. . . it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors.” (Rule 2.1050(e) (emphasis added).) There have been plenty of appellate opinions reversing judgments for prejudicial, instructional error based on the giving of a form instruction. It is thus the responsibility of counsel to explore any uncertainty as to the applicability of a form instruction in his or her case and not simply assume that because it is stated in CACI, it must be accurate.

Regardless of the source, pattern jury instructions are not entitled to a presumption of correctness. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, fn. 6.) Furthermore, even where an instruction is generally a correct statement of the law, it may just be that given the facts of a particular case, it is nevertheless appropriate to modify, supplement or improve the standard form instruction. The use of special jury instructions is still very much alive and well. (See Code of Civ. Proc., § 609; Calif. Rules of Court, rules 2.1050(e) and 2.1055.)

CACI and other sources of instructions

As the official instructions for use in California civil jury trials, it is always advisable to consult CACI at the outset of litigation so as to become familiar with the applicable law. But if upon reviewing the form instructions, there is concern about the manner in which the law is presented or a hunch that the instruction does not accurately reflect the law, then by all means investigate. A great place to start is the cases cited in the “sources and authority” provided with each CACI instruction. While the Judicial Committee does an excellent job of phrasing the instructions and monitoring new cases as they come down to determine whether instructions should be modified, many questions of law are highly debatable and some authorities may simply have been overlooked and thus not considered in the drafting of the form instruction. Recognizing this, the Judicial Committee invites public comment on draft instructions and revisions. Through the California Courts Website, the Judicial Council issues reports with redline versions of proposed and prior changes which may shed light on issues concerning particular instructions. (See http://www.courts.ca.gov/ invitations-to-comment-archive.htm.) This can be an invaluable source in an investigation as to the accurateness of a form instruction.

Another idea is to consider BAJI (Book of Appoved Jury Instructions) to see if the law is phrased differently there. While no longer the official instructions for use in California, BAJI is still regularly updated and may offer alternative and preferable language in a given case. A comparison table between BAJI and CACI is available online at the California Courts Website. If a trial court agrees with your position as to the inappropriateness of a CACI form instruction, it may be inclined to agree to a BAJI instruction rather than one created by the requesting party.

Case law may also be an excellent source for jury instructions. (Suman v. Superior Court (1995) 39 Cal.App.4th 1309, 1321-1322; Craddock v. Kmart Corp. (2001) 89 Cal.App.4th 1300, 1306.) Further, jury instructions may be based on a statute. (In re Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 520, 522-524; Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.)

By recognizing early on that there may be an issue with a CACI instruction, counsel may be more attuned to the issue when reviewing case law on the subject during the stages of litigation, or paying attention to recently published authority or cases for which the Supreme Court has accepted review. By keeping abreast of the issue, counsel will be more prepared to argue for a modified or special instruction at the time of trial. As described below, it is important not only to object to inaccurate CACI instructions, but also propose a modification, supplement, or other special instruction.

Drafting special instructions

Civil litigants are entitled to legally correct, non-argumentative civil jury instructions on every theory of the case they advance at trial that is supported by substantial evidence. Litigants are also entitled to instructions that are particularized to unique facts or circumstances in the case. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) A “particularized” instruction however does not mean that a party may argue the case through the use of a jury instruction. “Instructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of the law.” (See Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1216; Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 360.) To avoid being argumentative, instructions should not reference facts in the case. Unless the parties and the court agree that a particular fact is dispositive of the jury’s decision, litigants should not include facts within a proposed special instruction.

Further, although it may be tempting to quote from an appellate decision directly for use in a special instruction, it is not always advised. As noted by one Court: “‘The admonition has been frequently stated that it is dangerous to frame an instruction upon isolated extracts from the opinions of the court.’ [Citation] ‘Judicial opinions are not written as jury instructions and are notoriously unreliable as such.’ [Citation] ‘One of the reasons for care in adopting a court opinion verbatim as a jury instruction is that its abstract or argumentative nature may have a confusing effect upon the jury.’ [Citations]” (Merritt v. Reserve Ins. Co. (1973) 34 Cal.App.3d 858, 876.) The problem is that the language plucked may be based on the particular facts before the Court of Appeal. For example, in reversing an order of dismissal following a demurrer, the appellate court may reference allegations from the complaint in concluding that a cause of action has been sufficiently stated. To quote such language out of context may then lead to a universal pleading standard never intended by the court.

This point was addressed in Pantoja v. Anton (2011) 198 Cal.App.4th 87, where the court noted that a special instruction pulled from language in a prior case reflected an accurate statement of the law but, without clarifying instructions, nonetheless resulted in prejudicial, instructional error given the facts of the particular case. In Pantoja, an employment action brought by an employee who worked on the television show Friends, the court agreed to provide the jury with a special instruction drafted by the defendant and pulled from an appellate decision (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264), stating that “A hostile work environment/sexual harassment claim is not established where a supervisor or coworker simply uses crude or inappropriate language in front of employees without directing sexual innuendo or gender-related language toward a plaintiff or toward women in general.” (Pantoja, supra, 198 Cal.App at p. 129.)

A central fact in Lyle, however, was that jokes about sex were common at the comedy show’s workplace. In finding prejudicial, instructional error, the Court of Appeal explained: “The instruction the court gave clearly was an accurate statement of the law; it was virtually a quotation of a holding in Lyle. We agree with Pantoja, however, that without additional instructions, the instruction given was misleading under the circumstances of this case. Without some form of clarification, the instruction could have caused the jury to draw the inference that harassing conduct or comments motivated by a gender-based discriminatory intent do not amount to an actionable hostile environment unless there are ‘sexual innuendos’ or ‘gender-related language.’ This inference would be incorrect because abusive conduct that is not facially sex-specific can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender, i.e., if men and women are treated differently and the conduct is motivated by gender bias. [Citation] … The instructions could have encouraged the jury to disregard evidence of abuse that was not framed in gender-specific terms even if it believed that abuse was motivated by gender bias.” (Id. at pp. 130-131.)

In short, it is axiomatic that every case is different and because of such, quoted language from an opinion is not always recommended. (See Ernest W. Hahn Inc. v. Sunshield (1977) 68 Cal.App.3d 1018, 1023.)

Spend time carefully drafting special instructions. Rule 2.1050(e) mandates that special instructions should be “accurate, brief, understandable, impartial, and free from argument.” Further, formatting is essential. A judge may correctly refuse a requested special instruction if it does not conform to the format requirements of California Rules of Court, rule 2.1055.

Lastly, when proposing a special instruction or a modification to a form instruction, be sure to offer an alternative should the court refuse your request so as to avoid any argument of waiver later down the road.

Issues on appeal

When requesting a modified form instruction, or proposing a special instruction, it is important to keep in mind the potential for instructional error on appeal and always be aware of preserving your objections and arguments for the record on appeal. Some appellate issues to keep in mind include:

An appellant cannot complain of the trial court’s failure to give an instruction that it did not request at trial. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1535.) Unlike in criminal law where the court has a sua sponte duty to instruct the jury on a wide variety of issues, in civil law it is the litigant who must propose complete instructions in accord with the theory of the case and/or their defense. (See Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1090-1091.)

A party need not have objected to a jury instruction that is an incorrect statement of the law in order to challenge the erroneous instruction on appeal. (Code Civ. Proc., § 647.) In these circumstances, the failure to object does not invoke the invited error doctrine. (Huffman v. Interstate Brands Cos. (2004) 121 Cal.App.4th 679, 706 [invited error doctrine “requires affirmative conduct demonstrating a deliberate tactical choice on the part of the challenging party”].) Notably, however, the automatic objection covers only instructions that misstate the law. (See Lund v. San Joaquin Valley R.R. (2003) 31 Cal.4th 1, 7.) Thus, the objection does not apply to instructions that are correct on their own, but are incomplete given the state of the evidence. (Ibid.) To preserve that contention on appeal, a party must object and offer a qualifying instruction.

Pursuant to the invited-error doctrine, a litigant may not therefore seek reversal on appeal based on improper jury instructions that he or she requested, or in which he or she acquiesced. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567; Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 999-1007.) A party cannot complain on appeal of substantive errors in instructions which the party requested the court give. (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 572-573; Perlin v. Fountain View Mgmt., Inc. (2008) 163 Cal.App.4th 657, 667.)

Likewise, where the same improper instructions were jointly requested by both parties, neither may claim error. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567.) Thus, while courts often request that the parties jointly prepare instructions, do not hesitate to oppose or object to instructions offered by the opposing party that suggest some troubling aspect. This is because a party who proposes an instruction (which as noted above would include an instruction jointly agreed to by the parties), will be deemed to have waived any error in the instruction that later comes to light. In contrast, even if a party does not articulate a reason for an objection to an instruction, so long as counsel does not expressly acquiesce to the instruction, the instruction will be “deemed excepted to.” (See Code Civ. Proc., § 647.)

In other words, if unsure about a particular instruction proposed by the opposing party, it is best to resist any agreement to the instruction by jointly proposing it. (See Hensley v. Harris (1957) 151 Cal.App.2d 821, 825-826 [“each party has a duty to propose instructions in the law applicable to his own theory of the case. He has no duty to propose instructions which relate only to the opposing theories of his adversary, and having no duty respecting them he has no responsibility for the latter’s mistakes” or to “offer corrections of the instructions of his adversary pertinent only to the latter’s theory of the case”].)

A party may also not challenge on appeal instructions given by the court either sua sponte or at the opposing party’s request, if the party proposed similar instructions. (Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d 1, 7.) That said, the “invited error” doctrine does not apply where, after its objection to an erroneous instruction was overruled, the litigant acquiesced in the ruling and submitted its own instruction in accordance with the ruling: “An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213.)

Lastly, when proposing a special instruction or objecting to a form instruction, always be sure to get it on the record. While jury instructions may often be resolved in an unreported conference with the judge in chambers, doing so risks issues of waiver on appeal. It is best to press the judge to conduct discussions pertaining to jury instructions in open court before a court reporter, and if it simply does not happen, then be sure to place on the record any such conversations at the first opportunity. (See In re Marriage of Schultz (1980) 105 Cal.App.3d 846, 857 [stipulations and rulings in chambers must be placed on the record: ‘Trial judges must be alert to insist upon it; counsel for the parties should be equally alert to their respective duties to their clients” to ensure an adequate record on appeal].)


While deviating from an approved form instruction can be scary, and at all times counsel must be attentive to the potential for instructional error on appeal, it is also noteworthy that it is through these battles on the trenches that the law can be corrected. Trial attorneys can be the most effective advocates for change in the law when they are poised to take advantage of the opportunity to use special instructions and object to form instructions they feel are inaccurate.

Additionally, if in specializing in a particular type of law, it becomes apparent that a form instruction does not quite reflect the law, consider writing directly to the Judicial Council with concerns and suggestions for improvement. If a case is in its early stages, there may even be time for the instruction to be changed prior to trial.

Holly Boyer Holly Boyer

Holly Boyer, named 2019 “Appellate Lawyer of the Year” by CAALA, is a partner in Esner, Chang & Boyer, a boutique appellate firm with offices in Southern and Northern California. All of the partners are certified by the State Bar of California as appellate specialists. In addition to handling all aspects of appellate litigation, the firm also assists trial lawyers with dispositive and post-judgment motions.

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