December 9, 2024
The jury instruction and verdict sheet can shape how the jury views the facts of the case. Thought must be put into what charges will be asked for and what questions will be asked of the jury before the trial begins and continually considered as evidence is presented. Rushing to prepare a request to charge and verdict sheet mid-trial can result in avoidable consequences. By working with appellate counsel before trial, trial lawyers can account for many of the eventualities of a trial and prepare a request to charge and verdict sheet that gives the jury a favorable lens to use when considering the facts of the case. Working with appellate counsel is also important to dissect an adversary’s request to charge.
The request to charge is essential because the failure to make specific requests constitutes a waiver of the request for a particular charge (see Lee v Lee, 51 AD2d 576 [2d Dept 1976]). But, perhaps more important is preserving objections to an adversary’s request to charge. An instruction given to a jury without objection is the law of the case (see Killon v Parrotta, 28 NY3d 101 [2016]). This waiver has two effects. First, the court will weigh the sufficiency of the jury’s verdict against the instruction given (id.). Second, failing to object to a charge creates a waiver to appeal whether the charge should have been given (Parlux Fragances, LLC v S. Carter Enterprises, LLC, 217 AD3d 420 [1st Dept 2023]). This waiver applies not only to the instructions given to the jury but also to the verdict sheet (Suarez v Ades, 212 AD3d 476 [1st Dept 2023]).
Equally important to the request to charge is the proposed verdict sheet. Like the request to charge, the failure to object to the proposed jury questions can result in a waiver unless the error on the verdict sheet is “fundamental” (see Graces v New York City Tr. Auth., 123 AD3d 401 [1st Dept 2014]). There is also the risk of asking a question that will hurt your arguments on appeal. This occurred to the defendant in Isaac v 135 West 52nd Street Owner LLC (221 AD3d 529 [1st Dept 2023]). The defendant proposed that the court ask the jury if the plaintiff fell from a ladder and then separate questions as to whether the defendant violated Labor Law § 240(1) and whether that violation was a substantial factor in causing the plaintiff’s injuries.
In contrast, the plaintiff proposed asking the jury if the defendant violated Labor Law § 240(1) and whether that violation was a substantial factor in causing the plaintiff’s injuries. The trial court gave the jury an interrogatory question, asking, “Did the accident happen substantially in the manner claimed by the plaintiff?” The verdict sheet also asked whether the defendant violated the Labor Law and whether that violation was a substantial factor in causing the injuries. The jury answered the questions by finding that the accident happened in the manner described by the plaintiff but that there was no labor law violation. Also, the jury did not answer the question on proximate cause.
The Isaac plaintiff successfully appealed and was given a new trial. The jury’s answer to the first question hampered the defendant’s argument. If the jury believed the accident happened as described by the plaintiff, they should have found that the defendant violated the Labor Law. The jury did not make that finding. However, this put the defendant in the position of having to defend a verdict that, if not legally inconsistent, made little sense. In fact, the question the defendant asked was not required, and the Appellate Division found that there was no need to ask the jury the question again at the retrial (Isaac, at 529 n1). Had the defendant not asked the question, the verdict most likely would have simply been that the defendant did not violate the Labor Law, and the plaintiff would not have been able to argue that the jury could not have made that finding if it believed the plaintiff’s version of events. When it comes to jury interrogatories, the wording of the question, and whether to even ask the question, should be done with an eye toward being able to defend a favorable verdict on appeal and to challenge an unfavorable verdict on appeal.
The nuances of objections, from jury instructions to verdict sheet wording, can significantly impact the trajectory of a case on appeal. As illustrated in recent case law, failing to object properly or framing questions poorly can result in waived appeals or weakened arguments, underscoring the importance of working with experienced appellate counsel before, during, and after trial. At the Law Offices of Seth M. Weinberg, PLLC, we are dedicated to helping our clients protect their rights and fortify their cases with meticulous preparation and a keen understanding of appellate strategy. When the stakes are high, and every detail counts, choosing the right appellate counsel makes all the difference. Contact us today to ensure your case is in skilled and capable hands from trial to appeal.