3d Cir. Model Jury Instr. (Civil) 5.4.1

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Last updated March 2026

her future jobs for as long as the reputational or other injury may be expected to 136

affect her prospects. . . . [W]e caution lower courts to take care to separate the 137

equitable remedy of front pay from the compensatory remedy of lost future 138

earnings. . . . Properly understood, the two types of damages compensate for 139

different injuries and require the court to make different kinds of calculations and 140

factual findings. District courts should be vigilant to ensure that their damage 141

inquiries are appropriately cabined to protect against confusion and potential 142

overcompensation of plaintiffs. 143

The pattern instruction contains bracketed material that would instruct the jury not to award 144

back pay or front pay. The jury may, however, enter an award of back pay and front pay as 145

advisory, or by consent of the parties. In those circumstances, the court should refer to instructions 146

5.4.3 for back pay and 5.4.4 for front pay. In many cases it is commonplace for back pay issues to 147

be submitted to the jury. The court may think it prudent to consult with counsel on whether the 148

issues of back pay or front pay should be submitted to the jury (on either an advisory or stipulated 149

basis) or are to be left to the court’s determination without reference to the jury. 150

Damages for Pain and Suffering 151

In Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108, 1121-22 (3d Cir. 1988), the Court held 152

that under 42 U.S.C. § 1981 and Title VII, a plaintiff cannot recover pain and suffering damages 153

without first presenting evidence of actual injury. The court stated that “[t]he justifications that 154

support presumed damages in defamation cases do not apply in § 1981 and Title VII cases. 155

Damages do not follow of course in § 1981 and Title VII cases and are easier to prove when they 156

do.” 157

Attorney Fees and Costs 158

There appears to be no uniform practice regarding the use of an instruction that warns the 159

jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp. , 448 F.3d 160

652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if 161

plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and 162

above what you award as damages. It is my duty to decide whether to award attorney fees and 163

costs, and if so, how much. Therefore, attorney fees and costs should play no part in your 164

calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not 165

properly objected to the instruction, and, reviewing for plain error, found none: “We need not and 166

do not decide now whether a district court commits error by informing a jury about the availability 167

of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not 168

plain, for two reasons.” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction directing 169

the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable that a jury 170

tasked with computing damages might, absent information that the Court has discretion to award 171