Litigation tip: Read the Jury Instructions Before Filing Suit

So you're feeling great because you landed a new client, maybe a general contractor who builds the most expensive facilities in the world. That sounds like a good client. The client hires you to file a lawsuit against an owner who failed to pay millions of dollars in retainage at the end of a billion-dollar project. You start by digging up the last Complaint you filed for breach of contract, tweak the names, dates and dollars, and file the lawsuit. Right? Wrong.

Before filing a lawsuit, you should take a deep breath. While many of us file lawsuits frequently, they are a big deal and you want to do it right. As such, you should consider reviewing sample jury instructions and perhaps consulting a "causes of action" practice guide before you do so much as put a caption on your Complaint. Most courts have sample/pattern jury instructions, and there are countless practice guides out there that break down your potential claims.

Wait a minute, why would I start by looking at the jury instructions? Don't I just worry about them in the unlikely event my case actually goes to trial or arbitration? NO. Jury instructions will guide you to the claims which might apply to your dispute. For example, your review of the jury instructions might make you realize the strength of additional claims to be asserted for your client, such as claims for tortious interference with contract, unjust enrichment, quantum meruit, or even fraud. In addition, the jury instructions outline the specific elements of the claims that you will need to plead (which will help you avoid motions to dismiss, for example). The jury instructions can be used as a navigation guide through all phases of the lawsuit, from the pleadings, through discovery, and all the way through trial or arbitration.

Does anyone have other ideas on starting points for drafting complaints? Some attorneys suggest you should even draft your jury instructions before you draft the complaint. I don't personally go that far, but maybe I should.

There are also various ABA Forum publications that you can utilize. For example, check out the Construction Damages and Remedies book here. For some pattern jury instructions, click here (California) and here (8th Circuit).