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Understanding the elements of each claim at issue in your lawsuit

The more seasoned legal professionals out there may be rolling their eyes at the title of this article. You’ve been practicing law for years. Of course, you know the importance of elements.

No offense, but this article isn’t aimed at you. It is, however, aimed at the newer professionals in your firm who may not know all the fun and practical ways you can use elements within the context of your lawsuit. So, let’s get started, shall we?

What the heck are elements?

Civil lawsuits, as you know, involve plaintiffs and defendants. For the ease of understanding the concepts in this article, we’re going to use a simple example where there’s only one party on each side and there’s only one claim being asserted (as if that would ever happen).

Let’s call our case Smith v. Casey. In this scenario, Joan Smith is the plaintiff and Sam Casey is the defendant. Smith plans to sue Casey in California State Court for “Negligence.” Smith’s attorney will draft a complaint asserting that one claim (or, as claims are known in California, “cause of action”).

Obviously, Smith doesn’t win the case just because she’s accused Casey of negligence. Instead, she has to allege and prove each element of the claim in order to prevail. In a negligence case, that means Smith will have to allege and prove: (1) that Casey was negligent; (2) that Smith was harmed; AND (3) that Casey’s negligence was a substantial factor in causing Smith’s harm. (See CACI, section 400).

Where do you find these elements?

There are plenty of great secondary sources that lay out the elements of the various claims a plaintiff might assert within a lawsuit. When I was practicing law, I never used a single one of them. Instead, I went to the best source out there for an attorney practicing law in California: The Judicial Council of California Civil Jury Instructions (also known as “CACI”). Other states have their own formal jury instructions, as do the Federal Courts and Criminal Courts. For now, we’re going to focus on our civil case in California State Court.

I remember the first time someone told me to use CACI when I was drafting a complaint. Thinking I was smarter than I was, I scoffed at them. “Why would we use jury instructions when we’re at least a year away from going to trial?”

The paralegal I was working with scoffed right back: “Because you want to assert exactly what you have to prove when you do go to trial. There’s no better way of determining that than heading directly to the Jury Instructions.”

It made perfect sense. That wonderful paralegal then took the time to show me even more useful things I could do with those jury instructions.

What else can you do with these elements?

Once you’ve identified the elements you are working with by locating them in your venue’s Jury Instructions, you will use them for just about everything you do for the rest of the case. For example, you’ll need to assert each of those elements when you’re drafting your complaint. If you fail to properly set forth each element, your opponent will likely file a Motion to Dismiss for Failure to State a Claim. Are you starting to see how important these things are?

After your complaint is filed and the defendant has filed an answer, you’re going to get to work on collecting evidence to prove your case (otherwise known as the discovery phase). The elements are critical to the work you do in discovery as well. Remember that paralegal I told you about earlier? She also gave me some great tips for this part of the case.

Specifically, she told me to gather three binders (this was back when we did everything on paper) — one for each element I needed to prove for my negligence claim. Then, as evidence poured in, I would place evidence that tended to prove one or more elements in the relevant binders. When it came time to go to trial, I knew not only what I had to prove but how I was going to prove it. Today, we use “folders” housed in a cloud as opposed to “binders” that cluttered my desk. That just means the organization of your proof for each element is easier than ever.

Do you need to do anything with the elements at trial?

Of course, you do. Indeed, now is the time that you’re actually going to use those Jury Instructions for their intended purpose. They’ll help you ensure you have all the proof you need to sway the jury, present your case in a logical manner that the jury will understand, and — obviously — they’ll also be used as jury instructions.

This seems too easy. What am I missing?

Well, this was a very simple example. Your opponent will also be gathering elements for each defense she asserts. You should be doing that as well so you know whether they have a valid defense.

Moreover, each jury instruction provided in CACI comes with its own references to supporting legislation and relevant case law. You’ll want to read up on all that so you can be certain you’re current on how courts are treating the claims you’re asserting and the defenses you’re opponent is asserting. Also, some individual elements have their own separate jury instructions and there are even jury instructions on ancillary issues. Using our negligence example again, there are jury instructions that deal with how a person’s intoxication impacts a negligence claim (CACI Section 404).

For now, just know that you should study the entire section pertaining to the claim you’re asserting as you prepare to litigate your case. If you’ve never put your nose into the Jury Instruction manuals before, do so now. It may just teach you more about the law than three years of law school.


  • Jennifer Anderson

    Jennifer Anderson is the founder of Attorney To Author, where she helps legal professionals bring their book projects to life. She was a California attorney for nearly two decades before becoming a freelance writer, marketing/branding consultant, ghostwriter, and writing coach. Her upcoming book, Breaking Out of Writer's Block, Exercises and inspirations for getting the words out of your head and onto the page, is due out in September 2023.

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