An article in Law.Com discussing the whys and hows of the Oregon Supreme Court's upholding of $75,000,000 punitive damage award against Phillip Morris on remand from the U.S. Supreme Court's reversal of same, is proof yet again of the old adage that "Pigs get fed hogs get slaughtered." 
This is particularly so in the jury instruction phase of a case. (See full article).
In the Oregon case, the Supreme Court had reversed the punitive damage award because the jury instruction given by the trial court had instructed the jury to consider the harm caused by PM to people other than the plaintiff.
On remand, the Oregon Supreme Court affirmed the award - a ruling which on its face might seem like it was sticking a finger in the Supreme Court's eye. But it wasn't. The Oregon Supreme Court affirmed the award on the ground that the attorneys for PM had themselves proposed a jury instruction that was not in conformance Oregon law and thus they had no right under Oregon law to complain about the instruction that was ultimately used.
The article posits that this instruction overreaching was due to overzealous associates trying to gain an advantage. I find it hard to believe in a case of this importance and a jury instruction issue that PM attorneys had to have focused on because punitive damages were at least a possibility, that the lead trial lawyers were not involved in the decision to propose the instruction that they did.
When proposing jury instructions, you must do so with the expectation that you are going to win before the jury [if this is not a possible expectation then you better settle before the verdict because things will only get worse]. Ergo, one should never allow the jury to hear an instruction proposed by you that overreaches and might result in reversal of a jury verdict in your favor. The same also applies to instructions that you propose which are rejected. If you want to preserve the record on appeal over an instruction that the other side proposed which was accepted, then you better be sure that what you propose is well within the pocket of settled law.
Why PM attorneys proposed anything other than an instruction that was in the pocket of the law and instead proposed one that overreached is emblematic of a critical litigation mistake/tactic that all too often guides the conduct of litigators - gamesmanship - ask for more so that you might get what you want.
This might be ok when negotiating a settlement, but, in my view, it is a bad tack to take in litigation - particularly in the jury instruction phase of the case. If your side's facts don't fit within the pocket of well settled jury instructions, then settle. By playing games with the instructions you build in problems that (1) anger the court [still an important player to have on your side during the trial] and (2) as PM found out can bite you later on.
It is not clear whether PM attorneys were ever given an opportunity to withdraw their proposed instruction or whether they just forgot to do so, but this story provides 75 million additional reasons why it is better to not follow the gamesmanship route.
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