December 16, 2024
Trial lawyers have asked me to assist them as appellate counsel during many trials over my career. Whether I attend daily court proceedings, ready to address emerging legal issues, or review daily transcripts to strategize with the trial team, my role as appellate counsel provides critical oversight that can greatly influence the trajectory of a case. This support is particularly vital during key trial events, such as the reading of the verdict. Often, a verdict announcement is straightforward: the jury delivers its decision, and the process concludes. However, there are times when this moment becomes a pivotal juncture, with the potential to shape the case’s future. With appellate counsel present, you can act swiftly and decisively, which can make the difference between a strong appeal and a lost opportunity.
A trial lawyer must always be prepared for an inconsistent verdict and be ready to object to an inconsistent verdict before the court disbands the jury. If an objection to an inconsistent verdict is timely made, the trial court has three options: (1) overrule the objection; (2) direct the jury to continue deliberations; or (3) order a new trial (CPLR 4111[c]). The Court of Appeals has held that failing to object to an inconsistent verdict before the jury is discharged prevents a party from raising the issue on appeal (see Bradley v Earl B. Feiden, Inc., 8 NY3d 265 [2007] Barry v Manglass, 55 NY2d 803 [1981]; see also, Salov Akinjide, 172 AD3d 1127 [2d Dept 2019]; Everding v Bombard, 272 AD2d 937 [4th Dept 2000]). As with all rules, there are exceptions to this rule of preservation. The logic behind this is that the trial court is deprived of the opportunity to address the issue by having the jury continue to deliberate when a party raises the issue after the jury is discharged.
As with any rule, there are exceptions to the rule that an inconsistency in a verdict is waived without a timely objection. The first exception, and perhaps the more challenging to use, is the Appellate Division’s interest of judgment jurisdiction. In that circumstance, the Appellate Division will order a new trial even though a party did not object to the inconsistency in the verdict. For example, in Motta v Eldred Central School Dist. (172 AD3d 1575 [3d Dept 2019]), the court clerk did not ask the jurors for an answer to one of eight interrogatories. After all the jurors except the foreperson left, the court realized that the clerk incorrectly took the verdict and that when the answers to all the questions were considered, it was apparent that the verdict was inconsistent. Even though neither of the parties objected to the inconsistent verdict, the unusual nature of the verdict caused the Appellate Division to invoke its interest of justice jurisdiction and direct a new trial.
The second exception deals with the inconsistent pain and suffering awards. For example, a jury will sometimes award $0 for future pain and suffering but make an award for future medical expenses. The Appellate Division does not have to rely on CPLR 4111(c) in those cases. Instead, it reviews the award to see if it materially deviates from reasonable compensation (see Natoli v City of New York, 180 AD3d 477 [1st Dept 2020]). From a plaintiff’s perspective, it may be tactically wiser not to object to the inconsistency in the verdict. If the jury is given more time to deliberate, they may eliminate the award for medical expenses and deliver a consistent verdict in the defendant’s favor. However, if no objection is made, the plaintiff can argue that the award of $0 materially deviates from reasonable compensation and may have a better chance of getting an award for pain and suffering.
The reading of a verdict may take only minutes, but its implications are often profound. With the Law Offices of Seth M. Weinberg, PLLC by your side, trial lawyers gain a critical advantage: immediate, real-time support to challenge inconsistencies and preserve pivotal issues. Our firm provides the depth of appellate knowledge needed to strengthen favorable outcomes or challenge unfavorable ones effectively. Engaging appellate counsel not only fortifies your case but also enhances your likelihood of success throughout every phase of litigation.
Though a verdict might seem like the end of a trial, it is often just the beginning of the case’s next phase. Collaborating with the Law Offices of Seth M. Weinberg, PLLC as appellate counsel before, during, and after trial gives you the strategic advantage necessary to achieve a successful resolution, regardless of when the case concludes.