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Special excerpt from the May/June 2020 edition of the FJA Journal

by Andrew A. Harris and Bard D. RockenbachBurlington & Rockenbach, P.A., West Palm Beach

1. Introduction: Why write about Jury Instructions Right Now?

At the outset, we want to wish everyone, their family members, and their professional families, good health.  We are all stronger together.  An article on Jury Instructions may seem out of place when there are no jury trials right now, and where criminal trials will understandably be given first priority once the Chief Justice and local administrative judges allow jury trials to resume, whether through live means or virtual means.  Nonetheless, our trials will resume, and in the meantime, we have to prepare our cases for trial.  The drafting of Jury Instructions is an essential aspect of preparing our cases for trial, and a very recent Supreme Court Opinion that will bring dramatic changes to the creation and amendment of Jury Instructions.

2. The old way that Florida’s Jury Instructions were implemented.

When drafting jury instructions, most, if not all attorneys will begin with a review of Florida’s Standard Jury Instructions.  This is practical and sensible; after all, the template is set forth on the Supreme Court’s website, and given this, it seems there is a judicial gloss of approval.  A recent Supreme Court Opinion, however, reminds parties that Florida’s Standard Jury Instructions aren’t always the standard.  The Court has also substantially revised the method by which jury instructions will be created and mended in the future.

First, a brief review of Florida’s Standard Jury Instructions.  Before the Supreme Court’s revision to this process just a few months ago, the development and authorization for use of Florida’s standard jury instructions was a two-step process.  Three committees on standard jury instructions, created by the Supreme Court, typed and reported proposed instructions and instruction changes to the Court covering their respective practice areas.[1]  The Court, in turn, authorized, modified, or declined to approve these instructions for publication and use in written Opinions.  Seee.g.In re Std. Jury Instrs. in Civil Cases & Std. Jury Instrs. in Contract & Bus. Cases—Joint Report No. 18-01, 260 So. 3d 965 (Fla. 2018).


Whenever the Court authorized instructions for publication, the Court had always included the following caveat explaining that by so authorizing the instructions, the Court expresses no opinion on the correctness of the instructions and that the authorization does not foreclose the requesting of additional or alternative instructions:

In authorizing the publication and use of these instructions, we express no opinion on [the instructions’] correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

See, e.g., 260 So. 3d 966. In an Opinion on February 27 this year, the Court utilized this same language in approving amendments to the Standard Jury Instructions.  See In re Std. Jury Instrs. in Civil Cases—Report 19-03, 290 So. 3d 840, 841(Fla. 2020).

Notwithstanding the Supreme Court’s repeated statements that that standard jury instructions are not necessarily accurate statements of the law, or proper under the facts of each particular case, far too often litigants lead trial judges into error by operating as if standard jury instructions are, well the standard.

Consider this example.  For a long time, Florida’s district courts of appeal were split on whether, in strict-liability design-defect cases, plaintiffs could prove a defect via the consumer expectations test adopted in the Restatement (Second) of Torts, or whether plaintiffs had to meet the risk-utility test set forth in the Restatement (Third) of Torts.  Standard Jury Instruction 403.7 did not take a position on this; rather the instruction stated in pertinent part, with the bolded words placed by the authors of this article:

b. Design defect

A product is defective because of a design defect if it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user without substantial change affecting that condition.

A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer] [and] [or] [the risk of danger in the design outweighs the benefits].

In 2015, the Florida Supreme Court resolved this legal issue.  See Aubin v. Union Carbide Corp., 177 So. 3d 489, 510 (Fla. 2015). The Supreme Court rejected the Third District’s adoption of the Restatement (Third) of Torts that imposed the risk-utility test in strict-liability design-defect cases: “[I]n approaching design defect claims, we adhere to the consumer expectations test, as set forth in the Second Restatement, and reject the categorical adoption of the Third Restatement and its reasonable alternative design requirement.” Id. at 511; see also id. at 494, stating that “the definition of design defect first enunciated in West [v. Caterpillar Tractor Co., 336 So. 2d (Fla. 1976)], which utilizes the consumer expectations test, instead of utilizing the risk utility test and requiring proof of a reasonable alternative design, best vindicates the purposes underlying the doctrine of strict liability.”[2]

In a perfect, automated world, the next day, Standard Jury Instruction 403.7 would have been modified so that the “[and] [or]” phrase in 403.7 would have been modified to “or.” Of course, this is how the Jury Instruction amendment process worked.  The Committee that had authority to consider proposing such an amendment, the Standard Jury Instructions in Civil Cases, is made up of plaintiffs’ and defense attorneys, distinguished judges, and reflects a diversity of views. It is not easy to have a committee propose that just one word be changed; indeed, once any portion of a jury instruction is examined, it is natural that the entire instruction is reviewed. In fact, it took five years before Standard Jury Instruction 403.7 was amended.

In the meantime, product liability cases continued to go to trial.  In one case where our Firm provided trial support, the trial judge declined to follow Aubin’s command that plaintiffs can solely rely on the Restatement (Second) consumer-expectations test.  Instead, the trial court required the plaintiff to prove a design defect utilizing the Restatement (Third) risk-utility test, relying on the still-intact “[and] [or]” language in Standard Jury Instruction 403.7 quoted above.  The trial judge also accepted the defendant’s position that the risk-utility test is required in cases where the alleged design defect is a complex medical device, and that the alleged defect in this case involved a complex medical device.  The jury returned a defense verdict.

The case is now on appeal, but provides an example where a Standard Jury Instruction amendment process can be slow, and where parties are able to utilize “standard” jury instructions to persuade trial judges that standard must mean right.  Meanwhile, in the February 27, 2020 Opinion discussed above, the Supreme Court finally amended 403.7 to change the phrase “[and] [or]” to “or.” 290 So. 2d at 840.[3]    Thus, finally five years after Aubin, the standard jury instruction provides that (emphasis added):

A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer] or [the risk of danger in the design outweighs the benefits].[4]

3. The Supreme Court revises the jury instruction process.

One week after the Supreme Court approved the change to 403.7 (and other jury instructions), the Supreme Court issued an opinion dramatically revising the jury instruction process. In re: Amendments to the Florida Rules of Judicial Administration, the Florida Rules of Civil Procedure, and the Florida Rules of Criminal Procedure—Standard Jury Instructions, No. SC20-145, 2020 WL 1593030 (Fla. March 5, 2020).   What precipitated this change?   Well, the Court told us, 2020 WL 1593030, at *2:

This Court has determined that the current process for developing and authorizing standard jury instructions is more cumbersome than necessary, and that despite the caveat routinely included in the Court’s opinions, some wrongly believe that by authorizing for publication and use standard instructions prepared by the committees, the Court has ruled on the legal correctness of those instructions. Moreover, because of this Court’s authorizing of the standard instructions, trial judges are sometimes reluctant to modify standard jury instructions or to give other instructions requested by a party that may be more appropriate.

In order to establish “a more efficient process for providing standard jury instructions to be used in civil [] cases and to avoid any misconception that this Court has “adopted,” “approved,” or otherwise ruled on the legal correctness of the standard jury instructions prepared by the committees,” the Court removed itself from the development and authorization for use of Florida’s standard jury instructions. 2020 WL 1593030, at *2.  The Court instead gave the plenary authority to the respective jury instruction committees to develop and approve, by two-thirds vote, new and amended standard jury instructions to be published for use in each of their respective case types.  2020 WL 1593030, at *2.

To effectuate these changes, the Court created and modified numerous rules, 2020 WL 1593030, at *3-4.

  1. The Court adopted a new Rule of Judicial Administration 2.270, the Supreme Court Committees on Standard Jury Instructions. The Rule explains that the Court has not specifically approved any of these Instructions, that the Committees’’ adoption of these Instructions is not to be construed as an adjudicative determination on the legal correctness of the instructions, and that such a determination must await an actual case and controversy.
  2. The Court adopted a new Rule of Judicial Administration 2.580 (Standard Jury Instructions), modeling it after existing Florida Rule of Civil Procedure 1.470(b). Trial judges may use the standard jury instructions on the Court’s website to instruct juries to the extent that the instructions are applicable, unless the trial judge determines that an applicable standard is erroneous or inadequate, in which event the judge shall modify the standard instruction or give another instruction as the trial judge determines to be necessary to accurately and sufficiently instruct the jury. If the judge modifies a standard instruction or gives another instruction, upon timely objection to the instruction, the judge must state on the record or in a separate order the respect in which the judge finds the standard instruction erroneous or inadequate and the legal basis for varying from the standard instructionNotably, the new rule requires every party requesting and receiving a modified instruction to send a copy of the modified instruction to the appropriate committee on standard jury instructions, so that the committee can consider the modification to determine whether the standard instruction should be amended.This Rule also explains that the Court has not specifically approved any of the Standard Instructions, that the Committees’’ adoption of these Instructions is not to be construed as an adjudicative determination on the legal correctness of the instructions, and that such a determination must await an actual case and controversy.This Rule also further states that the standard jury instructions authorized by the Court prior to the adoption of rule 2.270 shall be treated the same as and given no more deference than instructions approved by a committee under rule 2.270.
  3. The Court amended Rule of Civil Procedure 1.470 to delete the language now in new rule 2.580 and to provide that that trial judges in civil cases may use the standard jury instructions appearing on the Court’s website, as provided in new rule 2.580.

The Supreme Court concluded by stating that, “The Court anticipates that these new and amended rules will result in necessary additions and changes to the standard jury instructions being made available to trial judges and the parties in a more timely manner, which in turn will help to ensure that juries are accurately instructed.”  2020 WL 1593030, at *4.  The Rule amendments were effective April 1, 2020.  However, because the Rule amendments were published without public comment, the Court gave interested parties seventy-five days (to May 19, 2020) to file comments with the Court. 2020 WL 1593030, at *4.

4. So, what does this mean for all of us?

In enacting these rules and rule amendments, the Court explained that removing the judiciary from the standard jury instruction process “is consistent with’ the approach used in most other States, other than where there is explicit statutory or constitutional authority directing the states’ high court to develop and approve jury instructions for use. 2020 WL 1593030, at *2.   Further, the Court explained that giving plenary authority to committees was also “consistent with” the procedures used in federal district courts. 2020 WL 1593030, at *2.

So, what does this mean for all of us? On one hand, many attorneys took some comfort in having a series of tried and true “standard” jury instructions to utilize in preparing for trials.   Jury instructions often set the tone for your presentation of the case to a jury.  However, the Court has always explained that standard jury instructions were not pre-approved by the Court for substantive content.  To the extent practitioners and trial judges overlooked that caveat, the Court’s Opinion in March, 2020 dispels that mistaken belief once and for all.  Attorneys who are familiar with the proper law, as reflected in judicial decisions and their trial practices, will have an advantage in drafting jury instructions more likely to survive trial court and appellate scrutiny.  It will likely benefit trial attorneys to turn to other attorneys in your office, if you are able, or appellate counsel, to help draft jury instructions.  Everyone now knows that the standard jury instructions are not the standard, once and for all.  We hope in light of COVID-19 that we will be able to return to jury trials in the near future, in whatever capacity the new normal looks like for us in the practice of law.   In the meantime, preparing accurate jury instructions is an essential aspect of being ready to try our cases when the green light is given, in a safe way for our communities.

[1] The Court has created the Supreme Court Committee on Standard Jury Instructions in Civil Cases, the Supreme Court Committee on Standard Jury Instructions in Contract and Business Cases, and the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, to serve as standing committees responsible for preparing standard jury instructions for use in their respective case types.   This Article focuses on the Committees for civil practice.

[2] In Aubin, the Supreme Court also stated that, while the risk-utility test and establishment of a reasonable alternative design were not requirements for a finding of strict liability, nothing precludes a plaintiff from proving his or her case by showing that there were alternative safer designs, or a defendant from showing there were none.  See Aubin, 177 So. 3d at 511.

[3] While the only substantive change to Jury Instruction 403.7 was to modify the phrase the phrase “[and] [or]” to “or,” the Supreme Court also approved substantial revisions to the Notes accompanying 403.7.  See 290 So. 3d at 840-41. The Notes reflect that a plaintiff can rely on either the consumer expectations or risk/benefits utility test. The Notes also contain other revisions concerning product liability cases.

[4] Before the Supreme Court made these changes, the Court invited public comment. Two comments, from Attorney William Ourand and Attorneys Julie H. Littky-Rubin, Donald R. Fountain, and W. Hampton Keen, were received by the Committee.  290 So. 3d at 840.  All members of the FJA should all be appreciative of these comments, which promoted the ability of plaintiffs to be able to fairly prosecute their products liability cases, consistent with the framework sent under Florida law.

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