Planning for Success: Jury Instructions in Civil Cases

Republished with permission of the Virginia State Bar.

Relatively few civil cases are tried to verdict these days, so jury instructions may almost be an afterthought in the minds of many litigators. Of the cases that are tried, many are repetitive type cases in which an experienced litigator likely knows the instructions by heart, and can recite them – so jury instruction issues are almost incidental. But for cases that veer from that track, and for newer lawyers, jury instructions should be a very significant factor throughout the entire case from start to finish. Knowing your ultimate desired instructions is critical to case strategy, case valuation, and framing discovery and evidence for trial. They are the blueprint for the development and presentation of evidence that will hopefully lead to the desired verdict. So, this is a reminder to think about jury instructions early, craft them carefully, and know how to properly challenge the trial court’s decisions in charging the jury if those determinations do not go your way.

Frame the Case.

The pleadings in a case by no means fully shape the issues. Virginia notice pleading standards are generous, and even the stricter federal standards do not require a plaintiff to allege every fact and facet of his or her case at the outset. So too, a defendant need not assert every aspect of its defense in an answer. As a result, these mechanisms do not necessarily encourage lawyers to think fully and critically about the case at its inception, or how best to frame it under the law. That is where drafting jury instructions early-on can serve a valuable purpose. Engaging in the exercise of preparing the framework of your case in the jury instructions requires formulating both structure and strategy, each of which will impact the case as it moves forward. Early formation allows you to structure discovery around the central points in your anticipated instructions. Even if the case does not go to trial, boxing-in the opponent regarding the ultimate issues relevant to the legal instructions will often lead to a better settlement. And even if you are not focused on jury instructions, the odds are that your opponent is, even as he or she plans a Motion to Strike or Motion for Judgment as a Matter of Law.

In some cases, the Virginia Model Jury Instructions may suffice. In more complicated cases, you may be able to unearth instructions given in prior cases involving similar issues or claims reflecting how others framed the same issues (with or without success). That prior art may or may not be good or helpful. However, the temptation to seize on something that has already been used in a prior case is substantial – particularly if it’s a last minute item as you are otherwise swamped with trial and or preparation. Be mindful.

Bear in mind that this process is fluid. Issues in the case will likely develop and evolve as the matter progresses. Some may die on the vine, or the court may issue rulings that clarify what theories are viable. Cases where your opponent frequently shifts positions/theories or the court declines to define the legal boundaries are the most challenging, and make your framing the case for the jury even more critical to your chances of success at trial or settlement.

Take the Time. Instructions Can Win or Lose Your Case.

First and foremost, jury instructions should accurately state the law and have adequate legal support. However, seasoned litigators know that there are multiple ways to express the same “law.” We have all read proposed jury instructions that are either pro-plaintiff or pro-defendant. Obviously, you will frame your proposed instructions based on the desired outcome – but be aware that your opponent will do the same. It is remarkable how the same “law” can be stated with bias towards or against each side.

The Virginia Model Jury Instructions serve as ready references and guides; they may be used as templates for many instructions – particularly common instructions necessary in most cases. Trial judges are also generally more comfortable with adopting an instruction taken from the Model Instructions. However, the Model Instructions are by no means the answer in every instance. Do not be afraid to propose an instruction that differs from one taken from the Model Instructions.[1]

Judges in both state and federal courts have the discretion to issue tailored instructions that fit the precise issues and theories in a case.[2] Compare the following:

A. “There is a legal presumption that directors are shielded from liability in the performance of their duties if they were informed and acting in good faith”

B. “The law requires you to presume that the directors made “X” decision based on the information that they had available in good faith, and with the honest belief that their decision was in the best interests of the company.”

Instruction (A) and Instruction (B) are each accurate statements of law, but which helps your client’s position? Instruction (A) is phrased more in the abstract, uses legal jargon, is somewhat passive, and is not particularly understandable by a modern juror. Instruction (B) provides a directive that the jury is oath-bound to follow and keeps the focus on the transaction at issue. The lawyer proposing Instruction B can also use the directives of the instruction to inspire the questions to key witnesses during trial. That lawyer can then remind the jury of that precise and targeted line of questioning during closing – which also highlights the terms of the court’s instruction.

There will often be circumstances in which there is no Model Instruction, or where the law is unsettled or under-developed. In these instances, you will need to locate the prevailing authority (statutory and case law) and perhaps law from other jurisdictions. Do not be reluctant to blend and distill the mix of authorities into a clear explanation of the critical legal point. And while it is sometimes tempting to “guild the lily” when creating instructions from scratch, bear in mind that state appellate courts review instructions carefully, and improper instructions are often a basis for reversal. Make every effort to state the law clearly and correctly.

In complex cases, particularly those involving burden shifting, presumptions, or significant affirmative defenses, tailored finding instructions and special interrogatories/verdict forms can be useful. They offer the chance to “bookend” the trial with a recitation of the issues as your side sees them, taking a juror through every step of the analysis that he/she must undertake. In this respect, a finding instruction or verdict form pushes the jury to be more precise in their thinking – and not simply base their decision on general assessments or impressions. For both parties, these ultimate instructions provide a significant chance to reiterate the opposing party’s burdens of proof on the particular issue. Trial courts have ample discretion to craft instructions to the facts and issue in the case.[3]

Special verdict forms can also have important implications on appeal because they reveal the actual thought process of the jurors. In Virginia courts, jurors are presumed to have followed all of their instructions unless the record plainly shows otherwise.[4] And where the record does not demonstrate whether the jury relied on an erroneous instruction in reaching its verdict, the error is presumed harmful to the appellant.[5] Depending on which side you are on, you may prefer a general verdict form, which provides no indication of the precise grounds on which the jury reached its decision, and offers limited insight into the jury’s deliberation. But that comes with costs as well. When there is no way to discern whether the jury decided the case relying on a bad instruction, Virginia appellate courts will presume so unless the contrary is clear from the record.

Finally, remember that the entire jury charge matters, particularly on appeal in Virginia state courts. A reviewing appellate court will read and consider the jury instructions together, as a whole.[6] Accordingly, each instruction that you prepare warrants some discernment regarding both the wording of the individual instruction and how it fits within the other instructions.

Know Your Audience; Strike the Right Balance.

Drafting jury instructions is not a natural talent for lawyers. We are trained in legal writing – that is, to create a written advocacy product that other lawyers or judges with similar training will read and understand. Jury instructions are for a completely different audience that likely has no base knowledge and no real understanding of the terminology. This reality requires use of plain language that someone without any legal training can understand — without losing the core legal directive. And, the lawyer also must do it in a way that the trial judge finds acceptable. Serving these two masters is not always easy.

The trial judge has ample discretion to determine the form and content of its instructions.[7] The fundamental aim of an instruction should be to inform the jury fully and fairly about the law applicable to the particular facts of a case.[8] That base purpose should guide the tone, tenor, and approach of any proposed instruction. Think of an instruction as the architecture for advocacy, but not an advocacy document. If you are successful, you will use the instruction as a springboard to explain to the jury precisely why it must return a verdict in favor of your client. But a zealous or aggressive approach within the instruction will undoubtedly provoke an objection, engender close scrutiny from the court, and may result in the court’s refusal of the instruction. Instructions should not attempt to assume facts, make factual findings, or blatantly lead the jury to a particular conclusion.[9]

Basic phrasing within the instruction can matter as well. For example, a proposed instruction that tells the jury that “you must first consider ‘x.’ If you find ‘x,’ then you may consider ‘y’” is not likely to draw criticism. By contrast, an instruction with the same upshot, but phrased more prohibitively – “you cannot consider ‘y’ unless you have found ‘x.’ Only after you have found ‘x’ can you consider ‘y’” – is more likely to prompt scrutiny from the court or the other side. The more aggressive approach also renders the instruction somewhat confusing by starting with a reference to “y” before even discussing “x.” While the other side may have proffered an even more argumentative (or slanted) instruction on the matter and there might be little to lose and more to gain by proposing a more aggressive instruction, do not sacrifice clarity in the process.

Clarity and conciseness are key when it comes to the jury. For example, in a corporate case involving claims for breach of fiduciary duty, the business judgment rule doesn’t do the defense any good if the jury instruction doesn’t explain, in simple, clear language, what the rule is, what it does, and why it matters. So too, the volume and length of the instructions can matter. Burying a juror under reams of lengthy instructions can be counterproductive and create more confusion than clarity, and may also be viewed as prejudicial.[10]

Be Flexible.

In civil cases, Virginia law requires “the parties to furnish the trial court with proper and appropriate instructions that address their respective theories of the case.”[11] Always ensure that the case scheduling order contains a provision requiring the parties to exchange initial proposed jury instructions at a point before the last pre-trial conference. That said, it is impossible to foresee every issue that may arise at trial and submit an instruction on each point. In fact, it is often the case that, at the close of the evidence, you will find that you will want to submit additional instructions on particular issues or theories. The Federal Rules expressly authorize a party to propose instructions “on issues that could not reasonably have been anticipated by an earlier time the court set” or otherwise “with the court’s permission[.]”[12] Both matters are left to the discretion of the district court, but be aware that the court may bar the submission of an instruction on an issue that was foreseeable but not raised in the instructions previously submitted.[13]

While a Virginia court can only instruct the jury only on principles that find sufficient support in the evidence,[14] that is a relatively generous standard. The evidence presented in support of a particular instruction need only surpass a scintilla.[15] Moreover, in reviewing a trial court’s refusal to grant a proffered jury instruction, an appellate court will examine the evidence in the light most favorable to the proponent of the instruction.[16] And if a proffered instruction finds any support in credible evidence, its refusal is reversible error.[17] The upshot: plan to propose additional instructions to the court after the close of the evidence, and be aggressive in covering any additional matters that could warrant instruction. By the same token, you should object (on the record) to instructions offered by your opponent when the instructions are not warranted by the evidence.

Preserve Error.

The waiver doctrine is alive and well in the appellate courts when it comes to appeals of jury instructions.[18] In Virginia courts, “instructions given without objection become the law of the case and thereby bind the parties in the trial court and [the appellate court] on review.”[19] Similarly, the failure to request an instruction or the failure to proffer an instruction alternative to the instruction adopted by the trial court precludes assigning error on such grounds on appeal.[20]

Jury instruction issues typically find less traction in Federal appeals. Even so, an appellant may assign error to an instruction or the court’s refusal to give a requested instruction only if an objection was properly lodged.[21] The limited exception to the preservation rule is a “plain error” in the instruction that “affects substantial rights.”[22] Such instances are few and far between, however, because the error must have been clear and obvious, and affected the outcome of the trial court proceeding to the detriment of the appellant.[23] Accordingly, take every precaution to ensure that objections are timely made and the error is well-preserved at the appropriate time before the jury is charged.

Under the Federal Rules, the trial judge must allow parties the opportunity to object to the instructions it intends to give,[24] but the objecting party “must do so on the record, stating distinctly the matter objected to and the grounds for the objection.”[25] Similarly, Virginia appellate courts apply the contemporaneous objection rule, which requires an objection be stated with reasonable certainty at the time of the ruling.[26] In all events, the circuit court must have the opportunity to “rule intelligently” on a party’s objections.”[27]

The problem is, the circumstances in which the trial court considers proposed instructions and hears related argument/objections can vary. Always include a provision in the case scheduling order requiring the parties to serve objections to the initial jury instructions that have been proposed. Then, ensure that the proposed instructions and objections are made a part of the record at the hearing when instructions and associated objections are argued. The use of written objections allows a party to stake out its position on a particular instruction for the trial court’s consideration, and provides the groundwork and reminder to ensure that objections to the trial court’s jury instruction determinations are preserved.

Frequently, argument over instructions can occur in the evening after a full day of trial, and perhaps not even in the courtroom or with a court reporter present. Additionally, the court may not fully or clearly explain precisely what instructions it intends to give. These are avenues to waiver.[28] Accordingly, ensure that (1) the court reporter is not excused for the day until jury instruction argument concludes; (2) the court articulates its rulings on objections and the instructions that it intends to give; and (3) objections to those rulings and instructions are made and preserved on the record. Mark any rejected instructions as proposed and rejected. They should become part of the record.

Know the Standards of Review on Appeal.

Appellate courts are typically loathe to overturn a jury’s decision, and many avenues of appeal involving civil jury trials are curtailed by deferential standards of review. Appeals of jury instruction issues are no different. In both Virginia and the Fourth Circuit, a trial court’s decisions in giving or refusing proposed instructions are reviewed for an abuse of discretion.[29] However, whether an instruction accurately states applicable law is subject to de novo review.[30] Accordingly, how the instruction issue is framed on appeal may make all the difference in the level of scrutiny that it receives. Does the error in the instruction lie in the trial court’s use of certain words or phrases in the instruction [abuse of discretion standard]? Or, is the legal principle stated in the instruction wrong [de novo review]? These issues may go hand-in-hand, but not always. On appeal, think carefully in describing where the error lies with regard to a particular instruction.

In Virginia, the issue of whether an instruction finds support in more than a scintilla of evidence is also reviewed de novo.[31] While seemingly a low threshold, Virginia appellate courts have declined to establish a precise definition of “scintilla,” choosing instead to resolve the issue case-by-case, viewing the evidence at trial in the light most favorable to the proponent of the instruction.[32] There have been cases in which this standard was not met,[33] but on balance, it seems more likely that error may lie the trial court’s refusal to give an instruction – rather than in its decision to give an instruction – so long as the instruction is not duplicative or cumulative.[34]

Conclusion.

Presenting your case to the jury comes with seemingly endless potential risks. That is as evident in the jury instruction process as any other part of trial. But you can use the instructions to your advantage when you know and use those jury instructions early-on to then structure and shape the case through trial. And at trial, never assume that the jury will understand the instructions. Get them out and argue the most important ones as part of your closing. Explain what the terms and concepts mean and why your client must win. And in appropriate circumstances (e.g., where the jury may be biased in favor of the opposing party), you may need to remind the jury of its oath to faithfully apply the law as instructed. Most jurors will not blatantly fail to do so – even if they don’t like the result.

[1] See Va. Code § 8.01-379.2 (“[a] proposed jury instruction submitted by a party, which constitutes an accurate statement of the law applicable to the case, shall not be withheld from the jury solely for its nonconformance with the model jury instructions”); Harman v. Honeywell Int’l, Inc., 288 Va. 84, 104, 758 S.E.2d 515, 527 (2014) (“an instruction may not be withheld from the jury solely because it varies from the model instruction”).
[2] Commonwealth v. Barney, 884 S.E.2d 81, 86-87 (Va. Ct. App. 2023) (“a trial court has the discretion to give tailored instructions to focus a jury on specific contested issues”); United States v. Bosket, 356 F. App’x 648, 651 (4th Cir. 2009) ([j]ury instructions should be drawn with reference to the particular facts of the case on trial, because abstract instructions that are not adjusted to the facts of a particular case may confuse the jury . . . Different factual situations obviously call for different degrees of particularity . . . and the choice of generality versus specificity in the charge is a matter left to the sound discretion of the trial courts.”) (internal quotations omitted).
[3] Benjamin v. Sparks, 986 F.3d 332, 346 (4th Cir. 2021);  Prieto v. Commonwealth, 278 Va. 366, 407, 682 S.E.2d 910, 932 (2009) (noting “the circuit court’s discretion in tailoring verdict forms to the issues presented in a particular case”).
[4] Gillam v. Immel, 293 Va. 18, 26, 795 S.E.2d 458, 463 (2017); Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 537, 636 S.E.2d 416, 426 (2006); Gravitt v. Ward, 258 Va. 330, 337, 518 S.E.2d 631, 635 (1999).
[5] Johnson v. Raviotta, 264 Va. 27, 39, 563 S.E.2d 727, 735 (2002); see also Cain v. Lee, 290 Va. 129, 136,  772 S.E.2d 894, 897 (2015); Clohessy v. Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97 (1995).
[6] United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 382 (4th Cir. 2015); Hawthorne v. VanMarter, 279 Va. 566, 586, 692 S.E.2d 226, 238 (2010).
[7] Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 233 (4th Cir. 2016) (“a trial court has broad discretion in framing its instructions to a jury”) (quotation omitted); Shaikh v. Johnson, 276 Va. 537, 546, 666 S.E.2d 325, 329 (2008) (“[t]he burden is on the proponent of a jury instruction to satisfy the trial court that the proposed language is a correct statement of the law, applicable to the facts of the case on trial, and expressed in appropriate language”).
[8] See Hawthorne, 279 Va. at 586, 692 S.E.2d at 238.
[9] See H.W. Miller Trucking Co. v. Flood, 203 Va. 934, 937, 128 S.E.2d 437, 440 (1962) (“[a]n instruction which is confusing, argumentative, long, and merely an attempt on plaintiff’s part to have the court apparently agree with his theory of the case should be refused”); Hardin v. Ski Venture, 50 F.3d 1291, 1294 (4th Cir. 1995) (jury instructions may not “effectively direct a verdict for one side or the other”).
[10] H.W. Miller Trucking, 203 Va. at 937, 128 S.E.2d at 440 (“[t]he piling of instruction upon instruction does not help a jury, and treads close upon the heels of invited error”); Holmes v. Commonwealth, 76 Va. App. 34, 53, 880 S.E.2d 37, 46 (2022) (rejecting a duplicative instruction that “would inappropriately single out for emphasis a part of the evidence tending to establish a particular fact . . . and would be confusing or misleading to the jury”) (internal quotations omitted).
[11] Honsigner v. Egan, 266 Va. 269, 275, 585 S.E.2d 597, 601 (2003).
[12] Fed. R. Civ. P. 51(a)(2)(A)-(B).
[13] See, e.g., Potthast v. Metro-North R.R., 400 F.3d 143, 153-54 (2d Cir. 2005).
[14] Pollins v. Jones, 263 Va. 25, 28, 557 S.E.2d 713, 714 (2002); Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 55, 710 S.E.2d 736, 740 (2011); see also Rosen v. Greifenberger, 257 Va, 373, 380, 513 S.E.2d 861, 864-65 (1999) (a “trial court should give a jury an instruction that, while a correct statement of the law as an abstract proposition, is inapplicable to the facts of the case”).
[15] Dorman v. State Indus., 292 Va. 111, 125, 787 S.E.2d 132, 141 (2016); Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78, 597 S.E.2d 43, 45 (2004).
[16] Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185 (2009); Honsinger, 266 Va. at 274, 585 S.E.2d at 597 (citation omitted).
[17] Holmes v. Levine, 273 Va. 150, 159, 639 S.E.2d 235, 239 (2007).
[18] Va. Sup. Ct. R. 5:25; Va. Sup. Ct. R. 5A:18; Belk, Inc. v. Meyer Corp., 679 F.3d 146, 153 n.6 (4th Cir. 2012) (appellant waived challenge to jury instruction by “neglecting to make timely and sufficient objections to the court’s charge below”).
[19] Wintergreen Partners v. McGuireWoods, 280 Va. 374, 379, 698 S.E.2d 913, 916 (2010) (quotation omitted); Ulloa v. QSP, Inc., 271 Va. 72, 80, 624 S.E.2d 43, 48 (2006) (stating that the appellant “is bound by his agreement to the jury instructions given to the jury as the law of this case”).
[20] Dorman, 292 Va. at 125, 787 S.E.2d at 141; Holles v. Sunrise Terrace, Inc., 257 Va. 131, 138, 509 S.E.2d 494, 498 (1999).
[21] Fed. R. Civ. P. 51(d)(1)(A)-(B) (a party may assign error to an instruction actually given, if that party properly objected, or to the refusal to give an instruction if the party properly requested it and – unless the court rejected the request in a definitive ruling on the record – also properly objected); see United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 912 F.3d 731, 737 (4th Cir. 2019).
[22] Fed. R. Civ. P. 51(d)(2); Gregg v. Ham, 678 F.3d 333, 338 (4th Cir. 2012) (to obtain reversal on plain error review, a defendant must show that (1) an error was made; (2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings).
[23] United States v. Said, 26 F.4th 653, 660 (4th Cir. 2022); United States v. Walker, 934 F.3d 375, 378 (4th Cir. 2019) (quotation marks omitted).
[24] Fed. R. Civ. P. 51(b)(1)-(2).
[25] Fed. R. Civ. P. 51(c)(1) (objections to the jury instructions must state “distinctly the matter objected to and the grounds for the objection”); Mattison v. Dallas Carrier Corp., 947 F.2d 95, 112 (4th Cir. 1991) (“to preserve an objection to the instructions to the jury, a party is required to point out specifically the nature of the objection”) see also Pogue v. Retail Credit Co., 453 F.2d 336, 338 (4th Cir. 1972) (“under Rule 51 of the Federal Rules of Civil Procedure, a party may not object to instructions given or not given to the jury unless the party objects before the jury retires”).
[26] Nusbaum v. Berlin, 273 Va. 385, 402, 641 S.E.2d 494, 503 (2007) (“Under Rule 5:25, we will not sustain error to a ruling of a trial court ‘unless the objection was stated with reasonable certainty at the time of the ruling’”) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).
[27] Johnson, 264 Va. at 33, 563 S.E.2d at 731.
[28] See Bunn v. Oldenforff Carries GMBH & Co. v. KG, 723 F.3d 454, 468 (4th Cir 2013) (appellee failed to preserve a challenge to the jury instructions” because it “provided no record of an objection to the district court”); Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999) (appellant’s “fail[ure] to supply a transcript of the Rule 51 sidebar conference” gave rise to a “presumption that none of his challenges to the jury instructions were properly preserved”); Maltby v. Winston, 36 F.3d 548, 560 (7th Cir. 1994) (finding that the appellant had failed to preserve his challenge to jury instructions because “the instruction conference in the district court was not memorialized in the record,” and the appellant had not otherwise “ma[d]e a sufficient record”).
[29] Holmes v. Commonwealth, 76 Va. App. 34, 53, 880 S.E.2d 37, 46 (2022); Gentry, 816 F.3d at 233.
[30] Gentry, 816 F.3d at 233; Harman v. Honeywell Int’l, Inc., 288 Va. 84, 103, 758 S.E.2d 515, 526 (2014); Smith v. Kim, 277 Va. 486, 491, 675 S.E.2d 193, 196 (2009); Hancock-Underwood v. Knight, 277 Va. 127, 131, 670 S.E.2d 720, 722 (2009).
[31] Harman, 288 Va. at 103, 758 S.E.2d at 526.
[32] See, e.g., Witherow v. Commonwealth, 65 Va. App. 557, 565, 779 S.E.2d 223, 227-28 (2015); Holmes, 273 Va. at 159, 639 S.E.2d at 239.
[33] See, e.g., Sullivan v. Robertson Drug Co., 273 Va. 84, 93-94, 639 S.E.2d 256-57 (2007) (circuit court erred in giving instruction on the reasonableness of settlement); Monahan v. Obici Med. Mgmt. Servs., 271 Va. 621, 635-37, 628 S.E.2d 330, 338-39 (2006) (trial court erred in giving unsupported mitigation of damages instruction).
[34] See, e.g., Dorman v. State Indus., 292 Va. 111, 125-26, 787 S.E.2d 132, 140-41 (2016) (affirming trial court’s decision to give superseding cause instruction); Burns v. Gagnon, 283 Va. 657, 677-78, 727 S.E.2d 634, 646-47 (2012) (circuit court erred in refusing to instruct the jury on gross negligence); Holmes, 273 Va. at 158-160, 639 S.E.2d at 239-40 (circuit court erred in refusing to give proffered proximate cause instruction); Schlimmer, 268 Va. at 78-80, 597 S.E.2d at 45-46 (trial court erred “in refusing to instruct the jury on the doctrine of negligence per se”); Price v. Taylor, 251 Va. 82, 86, 466 S.E.2d 87, 89 (1996) (trial court erred in refusing to instruct the jury on fraud theory that was supported by the evidence); Bowers v. May, 233 Va. 411, 413-14, 357 S.E.2d 29, 30 (1987) (rejecting challenge of trial court’s decision to instruct the jury on contributory negligence because the theory was supported by the evidence); Honsigner, 266 Va. at 274, 585 S.E.2d at 600 (2003) (“we will approve a trial court’s decision not to give an instruction that is duplicative of instructions already given”).