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16 Fla. L.J. 1 (1942)

handle is hein.barjournals/florbarj0016 and id is 1 raw text is: FLORIDA LAW JOURNAL VOL. XVI JANUARY, 1942 No. 1 INSTRUCTIONS TO JURIES IN TRIAL OF DAMAGE SUITS By J. THOMAS GURNEY, Orlando, before Practicing Law Institute, Gainesville, Oct. 11, 1941 The subject is a rather comprehensive one. Even should I be so injudicious as to assume such a wide field of knowledge, the Chairman of the Legal Institute Committee has taken care, in referring this subject to me, to indicate that it should be confined, insofar as I was concerned, largely to a defense of damage suits, and the instructions to juries as viewed from that position. This is because a majority of the experience I have had in this field has been on that side of the table. It is no doubt a fact that lawyers with more profound knowledge of the niceties of the law, and with keener perceptions of the effect of the instructions upon juries, have found instructions to be of incalculable aid and assistance to them in presenting their cases to juries. As far as I personally am concerned, it has been my practice, after a number of unfortunate experiences with motions for new trials, to regard instructions with the same respect and care that I regard these trucks of the telephone companies that cruise over the highways of the State, with the big word DYNAMITE painted on the front. I have had occasion to speculate in my own mind as to whether or not those trucks actually carried any dynamite, but I have always come back to the conclusion that they possibly might. My position with respect to instructions is somewhat analogous. In the process of the trial of a case, I find that at various times, various phases of the case assume more importance than others, and even, no doubt, become to some extent distorted in a lawyer's mind. Later on, in the calm and deliberate chambers of the trial Judge, or in cool print in the record before the Supreme Court, it has seemed to me almost impossible that some instructions should have been requested, and given, or that there had been a failure to request others. The delicate, as well as obscure, line of balance between what is harmless error in an instruction, and what is a prejudicial error in an instruction, is such as to give a cautious lawyer who is the least bit uncertain about the applicability, or any of the many other tests of instructions, pause before he requests one. There no doubt was never a truer application of tfie famous words of Omar Khayyam, and what he said about the moving finger having written and having moved on. About all that a lawyer can do after he goes wrong, is to follow the course of the young man who lost a case before a very blunt trial Judge, and who became quite heated in his protests. The Judge finally turned to him and said, Mr. - , you have two remedies, either of which you can pursue. You can appeal, or you can go out behind the Courthouse and cuss the Court, to which the young lawyer rejoined, Yes, Your Honor, and I shall pursue them both. I do not mean to say that either the trial courts or the Appellate courts are not constant in the line of cleavage between harmless and prejudicial error, as a result of

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