Practical Tips for Drafting the Jury Charge and Preparing for the Charge Conference

By: Lea C. Dearing (Co-speaker)
University of Houston
December 5, 2008

I. When to start.
When should you start drafting the jury charge? The short answer is early—very early. Ideally, once you have live pleadings, start drafting the jury charge. When pleadings are amended, amend your draft. Why start so early? Several reasons. First, your draft of the charge is an outline of the case and reflects every element of every claim, counterclaim, defense, and damages each party needs to prove their case. As such, your draft of the charge is a ready-made guide for conducting discovery and preparing your case. Second, starting early forces you to think through the entire case and gain an understanding how all of the claims, counterclaims, defenses, etc. work together—or not. You will learn the case by preparing the jury charge and the earlier that happens, the better.

II. How and what to prepare.
Start with the live pleadings. Map out the claims, counterclaims, defenses, damages, attorney's fees—everything. Mapping will force you to learn the legal theories in the case because, unless you thoroughly understand each theory and how it works with the others, you will not be able to map them out. Take the scenario where the plaintiff pleads claims for fraudulent inducement and breach of contract and the defendant asserts a laundry list of affirmative defenses (waiver, estoppel, ratification, prior material breach, accord and satisfaction, etc.). Which of these defenses applies to the plaintiffs claim for breach of contract? Which applies to the claim for fraudulent inducement? For example, does waiver apply to both claims? Depending on the facts, maybe not. See, e.g., Wells v. Dotson, 261 S.W.3d 275, 282 (Tex. App.—Tyler 2008, no pet.) ("Acts done in affirmance of a contract can amount to a waiver of fraudulent inducement only where they are done with full knowledge of the fraud and of all material facts and with the intention, clearly manifested, of abiding by the contract and waiving all right to recover for the deception."); Horton v. DaimlerChrysler Fin. Servs. Americas, L.L.C., 262 S.W.3d 1, 6-7 (Tex. App.—Texarkana 2008, no pet. h.) ("A party's silence or inaction for a period of time long enough to show an intention to relinquish the known right...may be sufficient to prove a waiver [of breach of contract]."). Knowing, early on, that the waiver defense may require different evidence to operate against each claim will help you develop the claims or defense throughout discovery and give you the knowledge you need at trial to prove or defend your case.

Prepare the entire charge. All parties' claims, counterclaims, defenses, damages, etc. Only after you understand how everything works together will you truly understand the evidence you need to pursue through discovery and the elements you need to prove at trial. Understanding all of the legal theories and how they work with each other will also give you clarity as to the holes in your opponent's case—possibly giving you the opportunity for summary judgment or a directed verdict.

TO READ MORE, CLICK THE PDF ICON BELOW: