New York Personal Injury Trials,
Continuing to Try Your Case After the Summations
New York Law Journal, Thursday May 4th, 2006
Ben B. Rubinowitz and Evan Torgan
Anyone who has ever walked into a
courtroom while the jury is off deliberating can attest that it
is hard to find a more relaxed spot in the courthouse. Lawyers
who have endured the oppressive day-to-day tension of a trial,
culminating with the summations, can finally relax, and will
typically be seen reading a newspaper or chatting on their cell
phones, while they await their fates from the jury.
Deliberations
While the diligent trial attorney
has no doubt earned some down time, it is vital to be mindful
that your work is not yet done. Indeed, the proceedings which
accompany jury deliberations and even the rendering of the
verdict itself, and the advocacy skills of the attorneys
involved in sorting through issues such as jury questions and
inconsistent or confusing verdicts, can mean the difference
between a successful outcome and a disastrous one. In short, the
skilled trial lawyer must stay focused, even after the
summations are delivered, and the work appears to be done.
The first issue which can arise during deliberations is a
question from the jury, seeking clarification with regard to the
court's charge or the verdict sheet. Often, a jury may have
questions, reflecting that it does not fully understand a
portion of the charge, and may ask for an explanation of a
particular legal concept, such as proximate cause. It is the
practice of many judges to simply read back the charge that they
already read, the charge which caused the confusion in the first
place.
Here, we believe the better practice is for the trial lawyers
to urge that the court try a different approach, and meet the
jury's question head on by offering a more detailed explanation,
or at least attempt to communicate the concept in other words.
Even by the prefatory instructions to the Pattern Jury
Instructions (PJI) themselves, there is no requirement that the
court must stick to the charges
contained therein, verbatim. Indeed, the section entitled
'How to Use these Volumes,' found at the start of the PJI (a
must-read for any trial attorney or judge), goes to great length
to confirm the notion that the pattern jury charges are simply a
compilation of statutory language and case law, and do not
represent any sort of mandate to which Trial Courts must defer.
Specifically, this section states:
Judicial users of these volumes should be aware that a
criticism leveled against pattern charges generally--and across
the country--is that they are given by some judges without
appropriate adaptation to the particular facts and circumstances
of the case. The pattern charges are not intended for use as a
rote method of merely stating abstract legal principles to
jurors. The charge will be more intelligible to the jury and the
jury's task will be easier if the pattern charge is adapted to
the facts of the particular case by counsel in stated requests
and by the trial judge in preparing the charge (citations
omitted).
When a jury reflects its confusion regarding any point, it is
incumbent upon the court to try to help cure the difficulty and
assist the jury reach a fair verdict. Thus, the attorneys must
be ready to quickly submit, orally or in writing, an appropriate
answer to the jury's question. You may get your way, but if the
court fails to heed your request, you must make as strong a
record as possible, including the specific answer that you
requested that the court
give.
The Verdict Sheet
Jury questions also may arise with respect to the verdict
sheet itself. Initially, attorneys must make good case-by-case
decisions about the content of the verdict sheet which they
request. Two particular issues that come up relate to the number
of negligence questions that should be placed before the jury,
and how to deal with parties whose liability, if any, is solely
vicarious based upon the acts of another party.
While plaintiffs' attorneys, particularly in
medical
malpractice cases, normally prefer to put as many departure
questions on the verdict sheet as possible, secure in the
knowledge that just one set of 'yes' answers to a departure,
coupled with causation, will justify a plaintiff's verdict,
there is a danger to this strategy as well. Breaking down the
departures into minute detail involving specific times can
confuse the jury and focus its attention on whether or not the
departures occurred in a particular manner at a certain time,
rather than the broader question of whether or not the doctors
actually committed medical malpractice. Secondly, if the verdict
sheet includes departure questions which are both narrow and
broad (for instance, breaking down a doctor's alleged departures
over periods of time, coupled with a general question asking if
the doctor departed generally over the entire period of time)
can lead to seemingly inconsistent verdicts, and give a
defendant fodder for appeal,
in spite of a well-supported verdict in the plaintiff's favor.
Thus, while it is important that the jury sheet reflect the
different theories upon which the plaintiff may prevail, less
may be more in most cases from the plaintiff's perspective.
Another issue that often creates confusion is the vicarious
liability situation. Specifically, if one party's culpability
depends only on the findings regarding the negligence of a
different party, it is necessary or appropriate to mention the
vicariously liable defendant on the verdict sheet?
Because either the inclusion or the omission of such a party
can cause jury confusion, it is imperative that the court give
clear instruction to the jury on this point. If the vicariously
liable defendant is placed on the verdict sheet, along with the
alleged active tortfeasor, then the court must make it clear to
the jury that liability against that tortfeasor is automatically
established against the other party as well, and that there is
no need to apportion liability as between these two parties
since, as a matter of law, the acts of one are imputed to the
other. This format, coupled with the savvy attorneys'
explanations to the jury throughout the case (including voir
dire, opening statements and summations) should give the jury
its best opportunity to fully understand the respective rights
and obligations of all of the parties in the case.
If the court chooses to omit the vicariously liable defendant
from the verdict sheet,
under the reasoning that that parties' liability will be
determined by the answers to the jury questions relating to the
party for whom it is answerable, then the plaintiff's attorney
must request a charge which not does not appear in the PJI--an
instruction that the court has determined that defendant A is
vicariously liable for the acts and omission of defendant B as a
matter of law--and any finding against B will also act as a
finding against A. In cases in which the vicariously liable
party is represented by independent counsel, it is crucial that
the jury be given this information so it can clearly process
what is going on in the case.
Where a jury raises a question relating to the verdict sheet,
it is again imperative that the court attempt to give the jury
information that can help it decide the case. Moreover, if it
appears that the jury does not understand something on the jury
sheet, or the instructions by which it is to proceed, there is
absolutely nothing wrong with suggesting a modification to the
jury sheet which can be given to the jury prior to it reaching
its verdict. The bottom line is assisting the jury in performing
its function as trier of fact; if the jury indicates that it
cannot understand the task, justice will seldom be achieved
without appropriate guidance.
Testimony Read Back
Yet another issue that requires quick thinking on the part of
a trial attorney involves a jury's request to have certain
testimony read back. If the jury
simply asks for a witness' testimony in its entirety, then,
of course, it is a simple matter. More often, however, a jury
will request testimony regarding a certain point, and here it is
vital that the attorney have the transcripts on hand (assuming
daily copy has been ordered) and review them to ensure that the
read-back includes all of the relevant testimony the jury should
hear, in its proper context. The reading of only certain parts
of the testimony, without other portions which provide support
or explanation for the testimony which is being read back, is
misleading and will ultimately serve to unfairly prejudice the
jury.
Instructions Not Followed
Even once a verdict is rendered, the trial is still not
necessarily over. If the jury renders a verdict, but the verdict
sheet reveals that the jury did not follow the instructions that
it was given (such as answering questions that it should not
have, such as damages questions without finding any defendant
liable), or its responses result in an inconsistent verdict, the
attorneys and court must act immediately in order to sort out
the confusion. Without doubt, if the jurors did not follow the
instructions that they were given, then by definition, the
verdict which they have rendered is shrouded in confusion. We
believe courts should not try to decipher the jury's message
under these circumstances; where it is undeniable that the jury
has not followed the instructions, the court should not accept
such a verdict, but rather should re-instruct
the jury and have it return to deliberations in order to render
a verdict which comports with the law.
The losing attorney must make an immediate and forceful
record on this point. The law gives little credence to
affidavits from jurors, submitted after the fact from the
privacy of their own homes, averring their mistake or
misunderstanding about what happened in the jury room.
The court's only real chance to ensure a fair verdict is to
speak to the jurors immediately and, where necessary, send them
back for further deliberations. A defeated attorney must resist
any urge to accept the loss with dignity or impress the
courtroom that he is a good loser--instead, that attorney must
do everything in his power to protect his client's rights before
it is too late to do much good.
It must be noted that part of the goal in summation is to
ensure that the jury understands the responses that you need in
order to prevail in your case. By actually working with and
quoting verbatim from the verdict sheet, an attorney can attempt
to minimize the chances that a jury will render a verdict
against his client, when, in fact, the jury was attempting to do
the opposite.
A Clearly Confused Jury
These points are well-illustrated by the recent case of
Pavlou v. The
City of New York, 21 AD3d 74, 797 NYS2d 478 (1st Dept. 2005),
in which, in a 3-2 decision, the majority reversed the trial
court's granting of a new trial
resulting from the obvious jury confusion that has clearly
accompanied the verdict, and instead gleaned from the
inconsistent verdict the grounds for a defense verdict, and
dismissed the case. In that construction accident case, the
injured plaintiff sought to hold, among other parties, the
city
of New York, as owner of the construction site, liable under
Labor Law 241(6)
for a violation of the Industrial Code which limits the weight
load a crane may lift.
Although the City was a direct defendant in the case, the
court found during the trial that the City would have full
indemnification rights as against the plaintiff's employer,
Felix Industries, for any violation of the Industrial Code.
Since the City's liability was based on Felix's active
negligence, the court did not list the city of New York
on the
verdict sheet at all, prompting multiple questions from the jury
regarding its absence, and the impact which a verdict would have
on it. It is clear from the court's answers that it interpreted
the questions as an attempt by the jury to delve into
inappropriate areas that it should not have concerned itself
with, but a fair reading of its questions could reasonably lead
to the conclusion that the jury was seeking clarification with
regard to precisely what it was deciding, in light of the
arguments it had heard from all sides during the trial. Later,
the jury indicated it was having a problem deciding the
causation issue regarding the violation of the Industrial Code,
and asked if it could skip that question.
The jury rendered a verdict that found, inter alia, that the
Industrial Code had been
violated, but that violation was not a proximate cause of the
accident, and also found the crane manufacturer not negligent in
its manufacturing of the crane. If this was the jury verdict,
damages, of course, should not be assessed. Despite that fact,
the jury did award damages in the amount of $12.85 million. The
trial court considered this a defendants' verdict and released
the jury.
Thereafter, plaintiff's counsel obtained affidavits from all
the jurors, who explained that the verdict had been misrecorded,
and that had they understood the effect of their answer
regarding proximate cause, they would have answered 'yes.' As a
result, the trial court ordered a new trial. On appeal, the
Appellate Division reinstated the defense verdict, and dismissed
the case.
While Jury Still Empanelled
This case underscores the need to clear up jury confusion
while the jury is still empanelled, rather than attempt to
reconstruct its motives after the fact. Where, as was clear
here, the jury did not understand the court's instructions, the
jury needed to receive the opportunity to straighten out its
verdict.
In fairness, it is not the jury's job to simply decide who
should win, but rather to answer questions of fact put before it
and have the Court interpret those answers in accordance with
our law. That said, it is difficult and unfair to attempt to
fashion a logical verdict from the workings of a jury that
either could not follow the
court's instructions, or refused to follow them.
Particularly in this case, where making sense of this verdict
requires acknowledgment of the jury's finding that a crane was
operated with a negligently heavy load, but assumes a further
finding that such excessive weight was not a substantial factor
in the boom of the crane breaking and striking the plaintiff,
courts should not wander down the path of interpreting jury's
verdict which were caused by confusion. Making such a request
while the jury remains intact may be the trial lawyer's only
chance to achieve true justice in such a case.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
