Be Careful What You (Don’t) Ask For: Jury Instructions

The Oregon Court of Appeals recently issued its opinion in Lenn v. Baldwin, 269 Or App 189 (2015). Lenn is a legal negligence case, but it is more generally a cautionary tale about requested jury instructions. In Lenn, the plaintiffs alleged that their attorney in a real property dispute was negligent. The focus of the appeal was on this jury instruction: “An attorney is not liable for alleged negligence in how he handled a client’s case at trial if the clients had no valid claim for relief to begin with, because the attorney’s conduct could not be a cause of injury or damage to the clients.”

After the plaintiffs lost based on a jury finding that they were 75% at fault, the plaintiffs appealed. They argued that the disputed jury instruction did not make sense in the context of their case, given things that happened or could have happened before trial (such as not taking the case to trial in the first place, or settling before trial). The Court of Appeals observed that those arguments did not directly address the specific jury instruction, which was limited to attorney conduct “at trial,” and further noted that the instruction itself is a correct statement of the law.

It doesn’t take too much reading between the lines to see that the Court of Appeals probably felt that the plaintiffs could have asked for (but did not) different jury instructions that better addressed their attorney’s pre-trial conduct. And that it was too hard for the plaintiffs to show harm if there was error, because the jury in fact found the defendant attorney 25% at fault after hearing all of the instructions as a whole.

The bottom line: we’re in a profession where words make a difference. Sometimes all the difference.

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