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I Object! A Blog on Preservation of Error

Jury Instructions/Charge Conference/Verdicts


April 13, 2017 12:38 PM | Posted by Chris W. Altenbernd and James E. Parker-Flynn | Permalink
To win, trial lawyers must master the art of persuasion. But when they lose, they are tested by their mastery of the art of preservation. As standards of review in appellate courts have become increasingly demanding, preservation often requires coordination with your appellate attorney. read more
February 14, 2017 11:15 AM | Posted by Christine Davis Graves | Permalink
TipsIn Byrd v. Stubbs, 190 So. 3d 26 (Miss. Ct. App. 2016), the Mississippi Court of Appeals reminded us of the need to be diligent during a charge conference by raising specific objections to a proposed jury instruction, as opposed to a general objection. In Byrd, the plaintiff in a medical negligence case objected to a proposed superseding cause instruction on the grounds that the instruction was not supported by the evidence. It was not until her motion for new trial – after the verdict was rendered – that the plaintiff asserted that the proposed instruction was a misstatement of law. read more
January 3, 2017 9:57 AM | Posted by Joseph H. Lang, Jr. | Permalink
TipsOn November 21, 2016, the First Circuit offered practitioners yet another reminder that, as the charges and verdict form evolve through colloquys with the trial judge, there is a continuing obligation to object; the timing of objections to jury instructions and verdict form can sometimes take on more importance than the fact of an objection at the start. See In re Nexium (Esomeprazole) Antitrust Litigation, 842 F.3d 34, 59 (1st Cir. 2016). read more
August 3, 2016 10:00 AM | Posted by Matthew J. Conigliaro | Permalink
Imagine a trial judge is trying to move things along at a charge conference. An issue arises, trial counsel begins to voice objections, and the judge short-circuits the discussion by saying, “Your rights are saved on the issue.” Later, the trial is lost, appellate relief is needed, and a question arises about what exactly the incomplete objection preserved. read more
January 4, 2016 11:59 AM | Posted by Alina Rodriguez & Justin Wales | Permalink
A preservation pitfall to be mindful of when drafting a verdict form is whether and how to avoid the "two-issue rule." read more
October 8, 2015 9:36 AM | Posted by Matthew J. Conigliaro | Permalink
The trouble began with an off-the-record charge conference. Both sides proposed standard breach of contract jury instructions, but the defendant added additional language. The trial court gave the defendant’s version. The court also permitted the parties to place exceptions to the instructions on the record, but in doing so the plaintiffs made a general objection to not giving all of their proposed instructions without specifically discussing the additional language in the breach instruction. read more
January 27, 2015 4:14 PM | Posted by Cristina Alonso | Permalink

You have been asked to prepare a set of jury instructions and a verdict form for trial.  What do you do? Where do you start?  In my last op-ed, I talked about the potential grounds for reversible error that may arise from the verdict form.  In this op-ed, the last of a 5-part series, I discuss an often over-looked area of concern for reversible error—the court’s reading of the instructions to the jury.

V. The Court’s Reading of the Instructions to the Jury

When the court reads the instructions to the jury, listen and compare them to the instructions the court agreed to give. Make sure they are the same as any written instructions that will be submitted to the jury; if there is any difference between the two, the oral instructions will likely control on appeal.

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January 5, 2015 12:08 PM | Posted by Cristina Alonso | Permalink

You have been asked to prepare a set of jury instructions and a verdict form for trial. What do you do? Where do you start? In my last op-ed, I discussed how to persuade the court to give your requested instructions, the charge conference itself and how to ensure your issues are preserved for review, both as to your requested instructions and your objections to the other side’s proposed instructions. Now it’s time to discuss a crucial stage at trial and a fertile ground for reversible error—the verdict form.

IV. The Verdict Form

The verdict form should go hand in hand with your instructions. There are important strategic and legal issues you must consider when drafting the verdict form.

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December 10, 2014 11:38 AM | Posted by Cristina Alonso | Permalink

You have been asked to prepare a set of jury instructions and a verdict form for trial.  What do you do? Where do you start?  In my last op-ed, I discussed how to prepare for the charge conference.  Now it’s time to talk about how to persuade the court to give your requested instructions, the charge conference itself and how to ensure your issues are preserved for review, both as to your requested instructions and your objections to the other side’s proposed instructions.

III. During the Charge Conference
You have your requested instructions and arguments ready, but what should you expect at a charge conference? Some judges may not schedule charge conferences and you may have to specifically ask for such a conference. If the judge refuses to hold a charge conference, object on the record. Also, always ensure that a court reporter is present whenever the instructions or verdict form are discussed. If discussions occur outside the court reporter’s presence, be sure to state for the record what was argued and ruled on when the court reporter is present.

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November 25, 2014 11:36 AM | Posted by Cristina Alonso | Permalink

You have been asked to prepare a set of jury instructions and a verdict form for trial.  What do you do? Where do you start?  In my last op-ed, I offered advice on drafting jury instructions.  Now I tackle how to prepare for the charge conference:

II. Preparing for the Charge Conference

Part of preparing for the charge conference is ensuring that you bring with you all necessary material.  That includes bringing to the charge conference copies of all pertinent authority that may be the subject of the parties’ respective proposed instructions or verdict forms. Consider providing the court a binder that includes the instructions, verdict form and authority you will rely on. But, do not forget that it is not enough to simply hand this to the judge. File your proposed instructions and verdict form with the clerk’s office so that you have a proper appellate record. Likewise, make sure all other parties’ requested instructions are filed with the court.

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November 12, 2014 8:39 AM | Posted by Cristina Alonso | Permalink

You have been asked to prepare a set of jury instructions and a verdict form for trial.  What do you do? Where do you start?  Over the next several weeks, we will offer some basic guidelines for drafting jury instructions or a verdict form, preparing for the charge conference, and preserving any error that may occur during or after the charge conference.

The importance of having clear jury instructions, objections and rulings thereon cannot be underestimated, as jury instructions may be a fertile ground for appeal. Jury instructions are often reviewed de novo because they involve questions of law, so it is imperative that you preserve all potential issues related to the instructions and verdict form.

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October 20, 2014 1:05 PM | Posted by Joseph H. Lang, Jr. | Permalink
Preservation of Error TipsToday, the United States Supreme Court denied certiorari in Khan v. Chowdhury, Case No. 13-1479. Notwithstanding the denial, this case is notable, as it highlights a recurring issue in preserving error for appeal: proposing the proper verdict form at trial.

In Khan, the question presented was as follows:

Where one of the claims submitted to a jury is set aside after trial, must a court vacate the jury’s general verdict, or may the court apply a “harmless error” exception?

Traditionally, the Baldwin principle has governed in federal courts. See Maryland v. Baldwin, 112 U.S. 490 (1884). In Baldwin, the Supreme Court held that a general verdict must be vacated if any invalid theory was presented to the jury:

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