The Oklahoma Bar Journal November 2025

Other uniform or pattern jury instructions. In the absence of an OUJI or an instruction previously blessed by Oklahoma courts, look to other vetted uniform or pattern instructions for language that courts can trust. Federal circuit model instructions, neighboring states’ pattern instructions and reputable model instructions by legal publishers, such as Thomson Reuters or LexisNexis, are drafted by committees, road tested in tri als and often approved on appeal. That pedigree gives you neutral, plain-English formulations judges are more likely to adopt. Because these patterns are not tailored for Oklahoma law, you gain the most benefit when using the structure, but not necessarily the substance, of the instruction. But other juris dictions’ pattern instructions can be a great source of inspiration as to what might be missing within the OUJIs. If another jurisdiction felt they merited inclusion in their pattern, you have a strong argu ment that your jury would likely benefit from similar, clear guid ance on the subject here. Crafting a novel instruction from authorities. There are other instances, however, when you must reinvent the wheel. Either because you’re dealing with a mat ter of first impression or because there has been a development affecting existing concepts, you may get the sense very early on that the OUJIs and other pattern instructions don’t adequately capture your situation. In such instances, it’s incumbent upon you to take the relevant author ity – whether statute, procedural rule or case law – and propose to the judge how to best explain what the law is. As opposed to the other two sources of non-OUJI

Jury instructions shouldn’t be a last-minute ‘pretrial matter’; they’re the roadmap for the whole case.

instructions above, drafting a novel instruction from scratch can be the most intimidating and the most likely to draw scrutiny from the opposing party and the judge. But the inclusion of novel instruc tions can provide key guidance to jurors on how the law treats nuanced circumstances outside the more regular fact patterns generally accounted for in the uniform instructions. When the OUJI Is Wrong Even when there’s an OUJI on point, it won’t always accurately reflect the current state of the law. This can happen for a variety of reasons: a statute changed, a new decision reinterpreted an element or explanation of the law, the gen eral construction doesn’t account for atypical underlying facts. Whatever the reason, the judge is obligated to deviate from a uni form instruction when it “fails to accurately state the applicable law, is erroneous, or is improper.” 11 When that occurs, you are left with submitting either a modified or tailored version of the OUJI to fix the inaccuracy or a novel instruction from scratch.

THE ART OF CRAFTING AND ADVOCATING FOR NOVEL OR MODIFIED JURY INSTRUCTIONS Whatever the trigger, novel or modified jury instructions demand extra care and attention. The OUJIs are a very comfort able and safe space for courts. Departing from or adding to those instructions comes with some fric tion. Your goal should be to make the process as frictionless as possi ble for your judge. To that end, the following practices will help set you up for success when you find yourself outside the OUJIs. Begin With the End in Mind Jury instructions shouldn’t be a last-minute “pretrial matter”; they’re the roadmap for the whole case. Considering their importance in framing the issues on what must be proven, you should draft a working set of instructions as soon as you get the case. Writing them forces you to confront the elements, definitions, defenses, burdens and any unanimity or verdict-form issues while there’s still time to shape your discovery and motions practices and set your case strategy and theories. Also, by drafting them early, you will have more time to adequately prepare

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL