Anatomy of a Jury Instruction in Construction Litigation: Distilling the Complex into Plain Language for Compelling and Effective Charges - Part 2

Additional Resources to Consult and Consider

As mentioned above, Utah very recently issued a model set of jury instructions, including those specifically dealing with many construction issues encountered in that state. There were a number of charges identified with specific reference to Utah case law discussing these principles. It is notable that the Utah instructions also make reference to surrounding jurisdictions' case law as well as recognized treatises in this area., e.g., Bruner and O'Connor on Construction Law, C.J.S. Contracts, and even the ABA Model Jury Instructions: Construction Litigation publication mentioned above. Several of these specific instructions are set forth below.

CV2209 Defective Plans and Specifications

If [name of contractor] proves that [he] acted reasonably in following [describe plans and specifications] provided by [name of owner], then [name of contractor] can recover from [name of owner] the costs caused by reasonable reliance on the plans and specifications.

Also, included in the Utah instructions is CV2216, dealing with waiver of written change notice requirement. CV2216 states as follows:

The contract requires that change notices be made in writing. [Name of contractor] claims that [name of owner] waived the right to require written notice of contract changes. To succeed on this claim, [name of contractor] must prove that [name of owner], by words or by conduct:

understood that the work performed by [name of contractor] was extra work; and agreed or acknowledged that this extra work would require a change to the contract [time/compensation]. Waiver is then specifically addressed in CV2217 as follows:

"Waiver" means intentionally giving up a known right. To decide whether a party has waived a contract right, you must determine that all of the following have been proved:

a party has a contract right; the party knew of that right; and the party intended to give up that right. The intent to give up a right may be expressed or implied, and may be determined by considering all relevant circumstances.

The final instruction example comes in the area of cardinal changes. Here, the Model Utah Jury Instructions, 2d Ed., contains the following:

CV2220 Cardinal Changes

[Name of contractor] claims that [he] should be paid more than the contract amount because of a cardinal change(s). A cardinal change is a change that substantially alters the type of work described by the original contract. To succeed on this claim, [name of contractor] must prove that:

the change(s) were substantially different from the work described in the original contract; the change(s), were not anticipated under the contract; and the parties acted as if the original contract no longer applied. All of these model instructions are available through the Utah court's website, www.utcourts.gov/resources/muji The Utah instructions are also notable for two specific reasons; one, a set of instructions can be built utilizing the web-based format, see http://www.utcourts.gov/resources/muji/BuildInstructions.asp. Another useful resource is a set of guidelines for drafting plain-language jury instructions. Indeed, after reviewing some of the basic principles, including those of "Be clear"; "Be brief"; "Remember who your audience is (lay people, with varying degrees of education and language skills)"; etc., the guidelines generally provide notable suggestions on which to not only use and consult the standard-form instructions provided, but also to craft and create one's own case-specific instruction. These guidelines can be found at http://www.utcourts.gov/committees/muji/guideline%20summary.pdf. These guidelines are not only useful tools—it appears that they guided the drafting of the Model Utah Jury Instructions themselves; insofar as the examples above show, the instructions are precise and direct explanations of the principles discussed, along with the jury's role in deciding that particular issue.

As noted above, another resource is available for Florida construction law attorneys, in the form of the Florida Forms of Jury Instructions. Included within those forms is an entire section (Chapter 42) devoted to construction contracts. The first of two examples is the Florida version of the notice of claim requirement under a contract, found at §42.60. This provides as follows:

INSTRUCTION NOTICE OF CLAIM UNDER CONTRACT

[PLAINTIFF/ DEFENDANT]'S PROPOSED INSTRUCTION NO. _____

The [contract/subcontract] between Plaintiff and Defendant provides __________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ [quote or paraphrase the contract provisions that require notice of claim]

The [first/next] issue for your determination is whether Plaintiff gave Defendant notice of claim as required by the [contract/subcontract]. If you find that such notice was not given, then your verdict should be for Defendant.

[OPTIONAL (see Use of Instruction):]

However, if you determine that Defendant waived or excused Plaintiff's compliance with the notice of claim requirement or that Defendant either agreed or by [his/her/its] course of conduct did not require such notice, and you also determined that Defendant breached the [contract/subcontract], then your verdict should be for Plaintiff.

Another example is a construction-unique instruction dealing with measures of damages for expenditures by contractor due to delays, inefficiencies or acceleration. This charge, found at §42.95 includes the following language:

If your verdict is for Plaintiff on [his/her/its] claim against Defendant, you should also award the Plaintiff the amounts expended by Plaintiff for labor, services, equipment, or materials, which Plaintiff would not otherwise have made but for ___________ [describe delays in the work or inefficiencies in the work or acceleration of the work] caused by Defendant's breach of the contract. This includes expenditures for additional labor, services, equipment, and materials, and for increases in the amount that otherwise would have been paid for the labor, services, equipment, and materials already required. [Optional (see Use of Instruction): This also includes the Plaintiff's overhead and the profit Plaintiff could otherwise have earned from its expenditures for additional labor, services, equipment, materials and for increases in the cost of those items already required under the contract.]

Much the same as in the Model Jury Instructions: Construction Litigation publication from the ABA Section of Litigation and the Model Utah Jury Instruction...

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